In this issue: Discrimination — Race • Elections • First Amendment — Dress Code • First Amendment — Establishment Clause • First Amendment — Religion • Individuals With Disabilities • Mask Mandates • Public Records • Recreational Use • Sexual Abuse And Harassment • Sunshine Law • Teacher Misconduct • Teacher — Substitute — Licensure • Tenure • Termination • Title IX • Unemployment Compensation
District court dismisses parent’s $22 million lawsuit alleging multiple causes of action, including claims of race discrimination, IDEA claims, allegations of FERPA violations, and several allegations of a denial of constitutional rights.
Wheatley v. Boardman Local School, N.D.Ohio No. 4:21-cv-1831, 2022 U.S. Dist. LEXIS 112419 (June 24, 2022).
https://casetext.com/case/wheatley-v-boardman-local-schs-dist-bd-of-educ
Tiffany Wheatley brought a lawsuit against the Boardman Local School District Board of Education after the district banned her from travelling with her minor child to football games and band events for the 2021-22 football season. Initially, Wheatley sought a temporary restraining order. The court denied her request because Wheatley was attempting to bring claims on behalf of her daughter as a pro se plaintiff.
Over a period of months and a series of motions, Wheatley was granted leave to, and did, file a 31-page amended complaint detailing her and her daughter’s interactions with the district. The central part of her complaint involved Wheatley’s daughter’s participation in the school band’s dance line team. Wheatley’s complaint alleged denial of a free appropriate public education (FAPE), breach of contract, breach of trust, breach of due process, violation of the Rehabilitation Act (Rehab Act) and of Title VI of the Civil Rights Act of 1964 (Title VI), and “just about every other constitutional thing you can think of” including violations of the 14th Amendment and the Family Educational Rights and Privacy Act (FERPA). In her prayer for relief, Wheatley requested $22 million. The district filed a motion with the court to dismiss all the claims in Wheatley’s complaint.
The court reviewed Wheatley’s claims and identified 10 unique legitimate causes of action. The district court dismissed Wheatley’s claims for violations of Title VI, the Rehab Act and FERPA, on the grounds that she cannot pursue these claims as a pro se litigant on her daughter’s behalf. To bring a claim under Title VI, the plaintiff must be the intended beneficiary of the federal spending program. Regarding the Rehab Act, a parent does not have standing to sue public schools unless they show that the school personally discriminated against the parent because of their association with a disabled student. Finally, the court held that private actors do not have standing to enforce FERPA.
The court dismissed Wheatley’s breach of contract and breach of trust claims for failure to allege any facts to support these claims. The court dismissed Wheatley’s claim of denial of FAPE for failure to exhaust available remedies under the Individuals with Disabilities Education Act. Regarding her 14th Amendment due process and racial discrimination allegations, the court concluded that Wheatley had failed to allege plausible constitutional claims.
The court also dismissed Wheatley’s tort claims of intentional infliction of emotional distress and loss of filial consortium. On the first claim, the court concluded that Wheatley did not allege facts that show the defendants engaged in extreme and outrageous conduct that “goes beyond all possible bounds of decency” and could “be considered completely intolerable in a civilized community.” Regarding the second claim, the court concluded that loss of filial consortium is a derivative claim and Wheatley failed to identify the primary claim from which it is derived.
Kentucky district court finds that school board election maps were not equitably drawn and violate the constitutional principle of “one person, one vote.”
Coleman v. Winbigler, No. 22-75-DLB-CJS, 2022 U.S. Dist. LEXIS 125562 (E.D. Ky. July 15, 2022).
https://casetext.com/case/coleman-v-winbigler
The Campbell County School District Board of Education in Kentucky is made up of five members who are each elected from five districts. Plaintiffs in this case are residents and voters in Campbell County, who alleged that two of the school board districts were over-populated as compared to the other districts and thus violated the constitutional principle of “one person, one vote.” The plaintiffs filed a motion for preliminary or permanent injunction, asking the court to declare that the school board’s refusal to redraw the school board maps was unconstitutional and require the board of education to draw new districts in time for the November 2022 election.
The 14th Amendment’s equal protection clause guarantees a right “to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State’s population.” The court concluded that, while citizens of a specific area may not be constitutionally entitled to vote in school board elections, if a governing body determines that school board members will be elected rather than appointed, the fundamental right to vote applies.
The court reviewed whether the Campbell County School Board’s districts were so malapportioned as to violate the principle of one person, one vote, protected by the 14th Amendment’s equal protection clause. The court found that to determine the maximum acceptable deviation percentages, the court must: 1) calculate the ideal legislative district by dividing the total population by the number of legislative districts; 2) identify the districts of the challenged plan with the largest deviations above and below the ideal legislative district; and 3) measure the difference between the deviations of those districts.
The court’s calculations revealed that two of the districts were “constitutionally infirm” as votes by citizens in those voting districts were diluted. The court found that “a maximum population deviation of 10% or greater creates a prima facie case of discrimination and therefore must be justified by the state.” Because the two districts displayed deviations of 22.68% and 28.73%, the court found that the school board districts as drawn were “presumptively unconstitutional.” As justification for the deviations, the school board stated it was following the language of a state statute that prevented school boards from redistricting more than once every five years and required precincts to remain united. However, the court rejected this argument and found that “acting in good faith does not allow the Defendants to abstain from their duty to follow the Equal Protection Clause of the Fourteenth Amendment.” The court found that the plaintiffs established a continuing constitutional violation and were entitled to a temporary injunction. The court ordered the school district to redraw the school board districts to provide for a more equitable division of population.
District court dismisses student’s due process and equal protection claims against principal regarding a dress code violation but denies motion to dismiss First Amendment claims against the principal and teacher.
B.A.P. v. Overton Cty. Bd. of Edn., M.D.Tenn. No. 2:20-cv-00065, 2022 U.S. Dist. LEXIS 76492 (Apr. 27, 2022).
https://law.justia.com/cases/federal/district-courts/tennessee/tnmdce/2:2020cv00065/84198/68/
B.A.P. was a minor attending Livingston Academy in the Overton County School District where Stephen Henson was one of her teachers and Richard Melton was the principal. On Aug. 25, 2020, B.A.P. entered Henson’s classroom wearing a T-shirt saying “homosexuality is a sin — 1 Corinthians 6:9-10.” Henson sent B.A.P. to Melton’s office, where Melton read from the school handbook and informed B.A.P. that her T-shirt violated the dress code because it was “sexually connotative.” Melton told B.A.P. she would not be released from his office unless she changed her shirt and instructed her to call her parents and request a change of clothing. B.A.P. texted her parents, and her father called and spoke to Melton who informed him that B.A.P.’s T-shirt violated the dress code because it was sexually connotative as the word “homosexuality” included the word “sex.” Ultimately, B.A.P. was sent home for the day, marked absent and instructed not to wear the T-shirt to class again.
The district’s policy stated that, when a student is attired in a manner that is likely to cause disruption or interference with the operation of the school, the principal can take appropriate action up to suspension. Melton prepared the dress code contained in Livingston Academy’s student handbook which included this provision: “Clothing with offensive messages, including advertisements for drugs, alcohol, tobacco, sexual connotations, or double meanings, is unacceptable.” The dress code did not further define any of the terms used in this provision.
B.A.P. and her parent maintain that the T-shirt was consistent with an established practice of openly acknowledging issues of sexuality in the classroom setting. They noted that Henson’s classroom displayed what they described as a “pro-homosexual” 8.5” x 1”1 piece of paper with “the colors of the rainbow and the words ‘diverse, inclusive, accepting, welcoming, safe space, for everyone’.”
B.A.P. and her father, Richard Penkoski, sued the district, the board, and Melton and Henson in their individual capacities for violations of B.A.P.’s First Amendment rights to freedom of speech and freedom of religion. B.A.P. and her parent also brought claims that the board and Melton deprived B.A.P. of her due process rights under the Fifth and 14th Amendment and violated her rights under the equal protection clause of the 14th Amendment. Melton and Harris moved the court to dismiss all of B.A.P.’s claims against them for failure to state a claim or on the basis of qualified immunity. The claims against the board were not included in the motions considered by the court in this decision.
The court examined the plaintiffs’ claims to determine whether the complaint included sufficient factual matter which, if true, would state a claim to relief that is plausible on its face. A claim is plausible if the complaint pleads facts that allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Penkoski stated that his claims were brought both individually and in his representative capacity on behalf of his child. However, Melton and Henson argued that Penkoski failed to state a claim against them, on his own behalf, for actions they took against him that violated his constitutional rights. Penkoski failed to acknowledge or respond to this argument. The court concluded that, accordingly, Penkoski had forfeited his personal claims. It also agreed that Penkoski failed to state a personal claim against Melton and Henson.
The court denied Melton and Henson’s motion to dismiss B.A.P.’s First Amendment free speech and free exercise claims. The court concluded that an adequate analysis of the claims required a more developed record than is available in a motion to dismiss. It distinguished the key cases on student speech, from Tinker through Mahanoy, from the facts presented by B.A.P. The court concluded that, to determine whether Henson’s and Melton’s actions taken on a forecast of disruption were reasonable, it was necessary to conduct a context-dependent inquiry. It also concluded that resolving their qualified immunity claim was a task better suited to a motion for summary judgment, which would allow for more review of context. However, it dismissed B.A.P.’s First Amendment claims against Melton based on a theory of supervisory liability for failure to make allegations from which the court could reasonably infer that Melton participated in Henson’s actions before B.A.P. arrived in his office or that Melton had knowledge of any breakdown in the proper working of the school.
The court dismissed the plaintiffs’ due process claims against Melton because they are also pursuing First Amendment claims for the same situation. It dismissed the equal protection claim against Melton because the plaintiffs failed to allege any conduct that established disparate treatment of B.A.P. by Melton. The conclusion of the case (pages 15-16 of the linked opinion) included a concise discussion of the challenges school administrators face when attempting to balance students’ rights to freedom of speech and religion with the need to preserve a disruption-free environment.
FIRST AMENDMENT — ESTABLISHMENT CLAUSE
Supreme Court of the United States finds district violated coach’s First Amendment rights to free speech and free exercise of religion when it barred him from praying midfield after games and struck down the Lemon test for matters involving the establishment clause.
Kennedy v. Bremerton School District, 597 U.S. ___, 142 S.Ct. 2407, 2022 U.S. LEXIS 3218 (2022).
https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf
Joseph Kennedy was an assistant football coach for the Bremerton School District in Washington state. For seven years, after games and after players and coaches had shaken hands, the coach would kneel at midfield for approximately 30 seconds to “offer a quiet prayer of thanks.” The coach “offered his prayers quietly” while his students were otherwise occupied. Although he did not pressure or encourage them to do so, most of the players on the team would pray alongside him. Following some games, players from other teams would join him midfield. When joined by others, the coach would include short motivational speeches, some of which included religious references, with his prayers. The team also engaged in pregame or postgame prayer in the locker room.
When the district’s superintendent learned of these activities, he notified the coach to avoid motivational talks with students that included religious expression including prayer; refrain from suggesting, encouraging or supervising any prayer of students; and make his own religious activity nondenominational if students were also involved. The district based this notification on concerns that it would be in violation of the establishment clause of the First Amendment to the U.S. Constitution if it allowed the coach to continue his activity.
Following this notice, the coach ended the locker room prayers and stopped including religious references in his motivational talks. He stopped his personal, on-field prayer briefly, but ultimately told the district he felt compelled to offer post-game personal prayer at midfield because of his sincerely held religious beliefs. He said he wanted to wait until the game was over and players had left the field before kneeling midfield and saying a “short, private, personal prayer.” The district barred the coach from engaging in any overt actions that could appear to a reasonable observer to endorse prayer while he was on duty as a district-paid coach. Again, it based its response on the belief that anything less would lead to a violation of the establishment clause.
When the coach resumed prayers after the next three games, the district barred him from coaching further games and did not renew his contract the following season. The coach sued the district, alleging that its actions violated his First Amendment rights to freedom of speech and religious expression. The school district argued that its actions were conforming with the First Amendment establishment clause, based on the test established by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 603 (1971) (Lemon test).
Both the district court and circuit court agreed with the school district. The U.S. Supreme Court, however, reversed the circuit court’s decision and concluded that the First Amendment clause on free exercise of religion protects a school employee engaging in brief, quiet and personal religious observance at school. The court noted that this protection applies to brief, quiet and personal religious observances of any faith and that the government employer cannot allow religious observances of some faiths while prohibiting others. The court also concluded that governments, including school districts, cannot make religious observance compulsory, coerce anyone to attend church or force citizens to engage in formal religious exercise. The decision favorably noted prior holdings of the court that prayer involving public school students, such as prayer that is broadcast over a public address system to students who are a captive audience and prayer in which students are required or expected to participate, can be “problematically coercive.”
The court also concluded that the First Amendment clause on free speech prohibits a school district from infringing on a school employee’s right to free speech, including brief expressive religious activities. However, the court cautioned that the free speech rights of public school employees are not “so boundless that they may deliver any message to anyone anytime they wish.” Districts can regulate employee speech provided that the regulation is neutral and generally applied.
To determine whether employee speech at school can be regulated, the court applied a multistep process, based in prior case law. First, the district should determine the nature of the speech. If the employee is speaking “pursuant to … official duties,” the speech is government speech and subject to regulation. In that case, the free speech clause will not protect the employee from district control and discipline related to the speech. Factors to consider are whether the employee is engaging in speech within the scope of their duties, speaking pursuant to a district policy, conveying a district-created message or engaging in speech that the district has paid them to produce as a district employee. Second, even if the employee’s speech is private, the district’s interests as the employer may outweigh the employee’s interests if the speech is on a matter of public concern. The court stated that this analysis will require “a delicate balancing of the competing interests surrounding the speech and its consequences.” Garcetti v. Ceballos, 547 U.S. 410, 423 (2006).
The court further held that the Lemon test was no longer the appropriate establishment clause test and claimed that the court had abandoned it some time ago. It thus determined that the Bremerton School District should not have used the Lemon test to determine whether the coach’s actions could have violated the First Amendment establishment clause. Instead of the Lemon test, the court directed that the establishment clause “must be interpreted by ‘reference to historical practices and understandings’” (quoting Town of Greece v. Galloway, 572 U.S. 565, 572 (2014)). The court stated that any line drawn by courts and governments “between the permissible and the impermissible” must “accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.” Town of Greece at 577. It stated that any establishment clause analysis must focus on “original meaning and history” and that the Bremerton district (and courts reviewing the district’s actions) “erred for failing to heed this guidance.”
U.S. Supreme Court strikes down Maine’s exclusion of religious schools from private school tuition assistance funding.
Carson v. Makin, 596 U.S.___, 142 S.Ct. 1987, 213 L.Ed.2d 286 2022 U.S. LEXIS 3013 (2022).
https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf
In a 6-3 decision, the court ruled that Maine’s tuition payment assistance program violated the First Amendment because it excluded religious schools from receiving the funds. The court determined this system violated the free exercise clause of the First Amendment as the programs were denied the ability to participate in the program because of their religious character.
Maine operates a private school tuition assistance program primarily designed to address the fact that many of Maine’s rural communities do not contain a public secondary school. The funding system is designed to enable those families to send their children to private schools of their choice by defraying the cost of tuition; however, schools receiving such funding must meet certain state guidelines. One of these guidelines was that schools receiving such funds must be “nonsectarian,” a provision that was added in large part due to concerns about violating the establishment clause of the First Amendment by providing state funding to religious schools.
The court found that this nonsectarian requirement violates the free exercise clause because the sectarian schools to which the parents in this case wished to send their children were denied the funding on the basis of their religious nature. Drawing on two recent similar decisions, the court applied strict scrutiny to the law, meaning that such restrictions can be upheld only if they are narrowly tailored to advance a compelling state interest. In a previous case, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017), the court struck down a policy related to a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires because it restricted grants from going to entities controlled by religious institutions. Then, in Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020), the court struck down a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination.” Both of these provisions were found to be unconstitutional because they denied a government benefit to an entity based on the entity’s religious nature.
The court extended that reasoning here and struck down the Maine restriction on the tuition assistance program. It found that Maine failed to articulate that the restriction was “narrowly tailored” to advance “[a state] interest of the highest order.” The court rejected Maine’s establishment clause justification for the restriction, noting that because the establishment clause does not require states to exclude religious schools from generally available funding, concerns about violating this clause cannot be regarded as an important state interest, so the action could not survive strict scrutiny.
The court rejected attempts to distinguish this case from Trinity Lutheran and Espinoza on the ground that the funding restrictions in those cases were “solely status-based religious discrimination,” while the challenged provision here “imposes a use-based restriction.” Effectively, Maine attempted to argue that the restriction here was not because the schools were religious in character but because they would use the funds for the religious ends of promoting a particular faith. The majority rejected such reasoning and found that a “use-based restriction” does not trigger any lesser form of scrutiny and that the case was effectively on all fours with Trinity Lutheran and Espinoza.
Justice Stephen Breyer, joined by two other justices, dissented from the court’s ruling. The dissent noted the tension that exists between the free exercise and establishment clauses and the need for flexibility in determining how they coexist in the effort to prevent religious strife. It also highlighted that previous cases had never forced a state to pay for religious education as part of a tuition assistance program and drew upon the “status-based” versus “use-based” distinction discussed by the majority, noting that the schools at issue indicated that their curriculum was aimed at advancing their religion. The dissent ultimately would have upheld the restriction as a permissible effort to uphold distinctions between civic and religious education under the First Amendment. Justice Sonia Sotomayor joined most of Breyer’s dissent but also filed a separate dissent noting her position that Trinity Lutheran was wrongly decided and that the court’s line of decisions in this area was undermining the principles of separation of church and state.
District court dismisses IDEA FAPE denial claim for student with a disability attending dual-credit residential program at a university on the grounds that the program constituted postsecondary education and was therefore definitionally excluded from FAPE.
Bradley v. Jefferson Cty. Pub. Schools, W.D.Ky. No. 3:20-CV-00450-GNS-CHL, 2022 U.S. Dist. LEXIS 70588 (Apr. 18, 2022).
https://scholar.google.com/scholar_case?case=2654232217583642928&hl=en&as_sdt=6&as_vis=1&oi=scholarr
The plaintiff, Jack Bradley, was a student with a disability served by an individualized education program (IEP) by Jefferson County Public Schools (JCPS) in Kentucky. He was also identified as a gifted student and received those services as well. During his last two years of high school, Bradley was accepted into the Craft Academy for Science and Mathematics at Morehead State University (MSU) in Morehead, Kentucky, a residential program housed at the university. The academy was a dual credit enrollment program in which he would receive both high school and college credit during the 2017-18 and 2018-19 school years.
Bradley’s IEP included postsecondary transition services that required a “residential college experience.” Initially, JCPS agreed to implement the IEP while Bradley was at the Academy. However, the district was then directed by the Kentucky Department of Education (KDE) to not implement the IEP, so they stopped doing so. MSU also refused to implement the IEP. His parents then filed a due process complaint under the Individuals with Disabilities Education Act (IDEA) against JCPS, MSU and KDE. The hearing officer dismissed the complaint against the defendants, but the appeals board reversed parts of the dismissal while upholding others. The parents sought relief from the federal court for the IDEA violations and filed suit under Section 1983 of the Civil Rights Act. In federal court, only the parent’s claims against JCPS were at issue, as claims against the other defendants had been dismissed.
The district court noted that the result in the case ultimately turns on whether Craft Academy provided Bradley a “secondary school education.” The definition of a “free appropriate public education (FAPE),” the primary guarantee to IDEA-eligible students, specifically includes “secondary school education in the State involved.” The statute goes on to state that the precise definition of “secondary education” is determined by state law, but that it “does not include any education beyond grade 12.” This means that special education does not include postsecondary education, and the court determined that it was required to look to Kentucky law to determine whether Craft Academy provided a secondary education.
The U.S. Department of Education Office of Special Education Programs (OSEP) issued a guidance document to help districts determine when dual credit programs that are operated with postsecondary institutions can be considered part of a child’s special education services. It explained that these services can only be considered part of a child’s FAPE when: (1) "the education provided is considered secondary school education in the State" and (2) "the student's IEP team [determines] that the courses offered as part of [the] dual enrollment program are necessary to provide the student with FAPE."
The court ultimately found that Craft Academy offered postsecondary education, so it could not be considered special education. The court pointed to provisions of Kentucky law that described the academy expressly as a “postsecondary institution.” Provisions of state law also described “dual credit” as “college-level course of study” offered to a high school student. Because the actual instruction is considered to be “college-level” or “postsecondary,” it could not be considered part of a student’s FAPE, and the court thus dismissed the parent’s FAPE claims. The court also dismissed the parent’s procedural due process claims and their Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 claims because they were indistinguishable from the IDEA claims.
Federal court dismisses most claims against district accused of deliberate indifference to claims of peer-to-peer disability-based harassment of two students with disabilities.
Doe v. Nelsonville-York School Dist. Bd. of Edn., S.D.Ohio No. 2:20-cv-4467, 2022 U.S. Dist. LEXIS 87408 (May 16, 2022).
Plaintiffs are two students with disabilities attending the Nelsonville-York City School District. When the suit was filed, plaintiff R.S. was a high school student alleging she was bullied at school because of her disability diagnoses of attention-deficit/hyperactivity disorder (ADHD), mild intellectual disability, depression and anxiety. R.S.’s guardian alleged that R.S. was bullied by other students at Nelsonville-York and the district took no significant action to stop the bullying. Some of the incidents include R.S. being called the “r-word” by a specific student and being punched repeatedly on the bus by that same student. The district reports that the other student was expelled from the bus as a result of this incident and that this was the only incident that was reported to the district with any specificity.
The other plaintiff, N.F., was an elementary school student who has ciliary dyskinesia and a genetic disorder which causes mental and physical delays. N.F. was also allegedly bullied at school and came home with injuries. N.F. allegedly reported to his father that he was bullied for being smaller than the other students and for wearing a diaper. N.F.’s parent requested that the district provide a personal aide to supervise N.F. at recess and during transition times to help prevent injuries. The district provided an aide for a period of time but discontinued the practice and allegedly informed the parent that they discontinued it due to cost. After the aide was no longer present, there was another incident that resulted in serious injury, including a concussion that resulted in permanent injuries. The district claimed that it investigated and addressed each alleged incident of harassment and disciplined the other students as appropriate.
The students’ parents filed suit under Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act (ADA), Section 1983 of the Civil Rights Act and Ohio’s negligence/gross negligence provisions seeking money damages for the injuries sustained due to the bullying and harassment. The plaintiffs also sought recovery under the theory of liability, commonly called Monell liability, for customs and policies that violate constitutional rights after the U.S. Supreme Court case that first established the theory of liability, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The overall theory of the case was that that the district was deliberatively indifferent to the bullying and harassment of the two students, resulting in the injuries. Initially, the parents included claims under the Individuals with Disabilities Education Act (IDEA) but subsequently dropped those claims.
The district filed a motion for summary judgment, and first claimed that the suit should be dismissed for failure to exhaust administrative remedies under IDEA. The court rejected the exhaustion argument and determined that because the gravamen of the complaint was not a denial of a free appropriate public education (FAPE) and was instead a suit for money damages, the parents were not required to exhaust. Instead, the court analyzed the substance of each deliberate indifference claim for peer-on-peer harassment. The court analyzed the claims under the following test: “To establish that a school is liable for disability-based peer-on-peer harassment, a student must show that (1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) the school knew about the harassment, and (5) the school was deliberately indifferent to the harassment.”
The court granted summary judgment in favor of the district for both students. With regard to N.F., the court found that the plaintiff had failed to establish that N.F. was harassed because of his disability or that the school was deliberatively indifferent. As to the causation element, the parent had failed to establish admissible evidence connecting the harassment endured by N.F. to the disability — he had submitted only an affidavit stating that N.F. came home with injuries and that he said he was “pick[ed] on…for being small and wearing a diaper.” The court determined that these statements were hearsay and conclusory. The court further found that district staff were not deliberatively indifferent to the incidents of harassment. The court noted that there was no evidence presented that N.F. sustained injuries at the hands of a peer and that when he broke his arm at recess, school staff immediately reacted and got treatment for the student. The school also presented evidence that it reacted to each individual accusation of harassment, which the parent conceded but argued that the failure to provide the aide constituted deliberative indifference, which the court found did not constitute “clearly unreasonable” conduct on the school’s part.
The court likewise found that the district was not deliberatively indifferent in R.S.’s case. R.S. and her guardian had only reported one specific incident of bullying and that R.S. "consistently complained to [her] that she was being bullied by other students who called her r******d." Because the allegations were vague, she failed to set forth specific facts as required to survive the summary judgment phase. Further, for the one specific incident reported on the bus, the school had disciplined the other student, including expelling her from the bus and had amended R.S.’s safety plan to prevent another incident. However, the district was not granted summary judgment on the Section 504 and ADA claims.
The court dismissed the plaintiffs’ Section 1983 Monell liability claim that the district maintained customs or policies that violated the plaintiffs’ constitutional rights. The plaintiffs argued that the “district had a custom of acquiescence to or tolerance of peer-on-peer harassment towards students with disabilities.” The court rejected this argument because the plaintiffs failed to establish deliberate indifference and that the affidavits submitted by the parents did not refer to students with disabilities. Likewise, the court rejected the claims under state tort law, finding that the defendants were entitled to statutory immunity because the plaintiffs failed to establish deliberative indifference.
District court dismisses parents’ Ninth and 10th Amendment claims against district regarding a mask mandate in the 2021-22 school year for failure to make plausible arguments their rights were violated.
Wettersten v. Chillicothe City School Dist. Bd. of Edn., S.D.Ohio No. 2:21-CV-5187, 2022 U.S. Dist. LEXIS 95327 (May 27, 2022).
https://scholar.google.com/scholar_case?case=6642211956382839242&hl=en&as_sdt=6&as_vis=1&oi=scholarr.
Four parents from the Chillicothe City School District sued the board of education and the district’s board members and superintendent in their official and individual capacities, alleging that their rights under the Ninth and 10th Amendments to the U.S. Constitution were violated when the district implemented a face covering policy for the 2021-22 school year. They also alleged that their rights under the Ohio Constitution were violated. The district filed a motion to dismiss, which the court granted.
On Aug. 17, 2021, the district superintendent informed families that, through Sept. 10, the district would require face coverings for all staff, visitors and students in grades three-12 when at the district’s schools. The district later extended the face covering requirement for the full school year. The district’s policy included exceptions for reasons such as documented health or developmental conditions.
The plaintiffs allege that the district’s face covering policy was unsupported by science. They also alleged that wearing face coverings could expose wearers to a variety of health concerns. They filed a pro se lawsuit on behalf of themselves and their children seeking a temporary restraining order and a declaration that the policy was unlawful.
The court found that plaintiffs had failed to adequately allege that their rights under the Ninth and 10th Amendments were violated. Regarding the Ninth Amendment, the court concluded that it is a rule of construction that does not confer any substantive rights. Rather, it protects fundamental rights that are not explicitly protected by other provisions and, specifically in this situation, the 14th Amendment, which protects parents’ rights to direct the upbringing and education of their children. Although the plaintiffs had not raised a 14th Amendment claim, the court favorably noted a recent district court case from Pennsylvania raising similar claims under the 14th Amendment, in which that court concluded: “Although parents possess the right to raise their children as they see fit, they are not entitled to undermine the Government’s public health efforts during a global pandemic by refusing to have their children comply with a school masking requirement.” Oberheim v. Bason, M.D.Penn. No. 4:21-CV-01566, 2021 U.S. Dist. LEXIS 188843 (Sept. 30, 2021). Of particular interest to Ohio districts, after citing Oberheim, the Wettersten court found: “The Chillicothe Board of Education thoughtfully reviewed and considered local, state, and federal recommendations when making its decisions.”
The plaintiffs’ 10th Amendment claim was that their rights were violated because the federal government improperly intervened in local matters by providing funding through the American Rescue Plan of 2021 and information regarding the COVID-19 global pandemic and that the district inappropriately accepted both the funding and the information. The court rejected this argument and found the case law relied on by the plaintiffs inapplicable.
Finally, the court declined to exercise supplemental jurisdiction over the plaintiffs’ state constitutional claims.
Ohio Supreme Court denies writ of mandamus to fulfill a public records request for information rather than records.
State ex rel. Griffin v. Sehlmeyer, 2022-Ohio-2189.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-2189.pdf
Mark Griffin Sr. is an inmate at the Toledo Correctional Institution. On May 8, 2021, he submitted a records request to Sonrisa Sehlmeyer, the records custodian for the Toledo Correctional Institution (TCI). In his request, Griffin sought to obtain “documented records and or files on the actual amount of state, and/or federal funding that the Department of Rehabilitation and Correction has approved to fight COVID-19 at the prison.” Griffin also requested “the amount approved to TCI and the total amount spent, and the documented purchases that were made, and any documented balance left.” On May 14, 2021, Sehlmeyer responded that she had received the request and then entered a final entry that stated “Closed incarcerated individual form.” Sehlmeyer provided no substantive response to Griffin’s request. Griffin filed a mandamus complaint in August 2021, seeking disclosure of the records and statutory damages for TCI’s failure to disclose the records.
Sehlmeyer argued that Griffin sought information rather than records and, as a result, did not make a proper records request under Ohio Revised Code (RC) 149.43. The court found Sehlmeyer’s argument to be valid. Griffin’s request specified information that he sought but did not identify records that he wanted to access. A records request that places the burden on the public office to identify the responsive documents by searching for specified content is not a proper records request. The court held that Griffin’s request did not impose a duty of disclosure on Sehlmeyer under RC 149.43 and denied the writ.
Ohio court of appeals affirms summary judgment for district after cyclist rides bike into rope placed on trail by district staff.
Stone v. Northmont Schools, 2022-Ohio-1116.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2022/2022-Ohio-1116.pdf
On Aug. 23, 2019, Bruce Stone was riding a bicycle on a bike trail open to the public near the Northmont Middle School and Northmont High School complex. Stone rode his bike into a rope “securely attached on each side of the bike trail,” several feet off the surface of the trail, causing him to fall and sustain serious and permanent injuries. Stone and his wife, Gail, alleged that the rope was negligently placed by Lori Barnes, the middle school cross-country coach, who placed the rope to mark the cross-country course for a race that was taking place the next day. The Stones filed claims for negligence and loss of consortium, alleging that Barnes acted in the course of her employment at Northmont City Schools and that the district was vicariously liable for Bruce’s injuries.
The district and Barnes requested that the court dismiss the Stones’ complaint, arguing that they were entitled to judgment as a matter of law because they were immune from civil liability under Ohio’s recreational user statute because “a defect in the condition of the premises” caused Bruce’s injury. The district and Barnes further asserted that they were immune from any liability under Ohio’s political subdivision immunity statute.
The trial court sustained the district’s and Barnes’ motion for summary judgment. The court noted that the issue before it boiled down to the character of the rope: “whether the rope strung across the Northmont Trail was a condition in the premises for purposes of the recreational user statute, and if not, whether this rope was a physical defect in the premises for purposes of the sovereign immunity statutes.” The court concluded that the rope was a condition of the premises and rejected the Stones’ attempt to make a factual distinction between imbedded objects and suspended objects. The court further found that, because the rope strung across the trail was a condition of the premises, and because Bruce was a recreational user of the trail, the district and Barnes were immune from liability. The Stones appealed.
On appeal, the Stones argued that when Barnes “planted the stakes and installed the rope to block the trail,” the trail was closed to the public and the “essential character” of the premises changed, such that the recreational user statute did not apply. The Stones asserted that Bruce was injured by the negligent actions of Barnes, and not a condition of the premises, with the negligence being that she set up the course 24 hours before a race without taking precautions to block the trail or limit the pedestrian traffic. They argued that Bruce would not have suffered injury but for Barnes's actions, and they characterized the stakes and rope that she brought onto the premises as having changed the nature of the premises to a cross-country course, because it could no longer function as a recreational premise.
The court rejected the Stones’ argument. The court found that, at the time of the accident, the trail remained open to the public free of charge, and the installation of the rope did not somehow cause the trail to be closed to the public. In other words, viewing the recreational premises as a whole, the essential character thereof was not changed by the rope. The court held that since the district owed no duty to Bruce at the time of the accident, there could be no ensuring liability against the district and Barnes because of Bruce’s collision with the rope. As a result, the court affirmed the judgment of the trial court.
District court granted individual defendant’s motion that defendant board produce an unredacted copy of its investigative report into the underlying incident which district withheld claiming privilege.
Doe v. Lorain Bd. of Edn., N.D.Ohio No. 1:21 CV 1641, 2022 U.S. Dist. LEXIS 82142 (May 4, 2022).
Jane Doe worked as an intervention specialist for the Lorain City School District for over 20 years. Doe alleged that, beginning in January 2019, the school district’s director of health and wellness, Jrayene Nimene, engaged in a pattern of sexually harassing her both at school and at home. In December 2019, Doe reported Nimene’s conduct to the district, and the district’s legal counsel conducted an investigation into her allegations. At the conclusion of its investigation, counsel prepared an investigative report.
On Jan. 21, 2021, Doe filed a complaint with the Lorain County Court of Common Pleas, raising three claims under Ohio law: (1) sexual harassment; (2) aider and abettor liability; and (3) civil liability for criminal conduct. Doe later amended her complaint to include a cause of action under both federal and state law. Defendants to her claims were the school board and Nimene. Defendants removed the case to the federal court at that time.
On Dec. 8, 2021, Nimene filed a motion to compel the board defendant to produce an unredacted copy of the investigative report. On Dec. 18, 2021, plaintiff Doe filed a notice of discovery dispute, informing the court that there was an ongoing dispute concerning the board’s refusal to produce the unredacted version. On Dec. 21, 2021, Doe filed a motion supporting Nimene’s motion for release of the unredacted investigative report. That same day, the board filed a motion of opposition asserting that the board’s redactions to the investigative report were proper because “the redacted portions constitute the opinion, advice, and impressions of the Board’s attorneys.”
On Jan. 14, 2022, the board provided an unredacted version of the investigative report to the court, which it reviewed in camera.
The court analyzed the question of whether the report should be produced under the Federal Rules of Civil Procedure, including Rule 26(b)(1), which permits parties to obtain discovery on any nonprivileged matter that is relevant to the parties’ claims or defense and proportional to the needs of the case. It relied on the Sixth Circuit’s determination that the scope of discovery is within the broad discretion of the trial court. The party filing a motion to compel discovery bears the initial burden of showing that the information is discoverable. If that is shown, the opponent of the motion can show why discovery is “irrelevant, overly broad, or unduly burdensome or oppressive.”
In its analysis, the court stated that the issue before it was whether the board waived any privilege or protection it would otherwise have had relative to the investigative report when it raised the Faragher-Ellerth affirmative defense. When raising that defense in cases of co-worker harassment, the employer must show that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior.
The plaintiff and Nimene asserted that the board waived attorney-client and work-product privilege by placing the reasonableness of its investigation into Doe’s allegations at issue in this dispute. The board countered that, while the parts of the investigative report that memorialize the information gathered by the investigators are discoverable, the portions that are opinion remain privileged.
The court concluded, after reviewing the redacted portions of the investigative report, that understanding the board’s lawyers’ opinions, mental impressions and conclusions regarding the investigation into Doe’s claims was central to the question of whether the investigation shows that the board took reasonable efforts to detect and prevent harassment. The court granted Nimene’s motion to compel an unredacted copy of the investigative report but denied all other aspects of the motion to compel.
Appeals court upholds finding that relator engaged in frivolous conduct after relator filed Open Meetings Act challenge to board of commissioners’ actions at the direction of one of the commissioners who disagreed with the board’s actions.
State ex rel. Ames v. Portage Cty. Bd. of Commrs., 2022-Ohio-2543.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2022/2022-Ohio-2543.pdf
The court of appeals for the 11th District upheld the trial court’s dismissal of an Open Meetings Act challenge against the Portage County Board of Commissioners and upheld the finding that the plaintiff had engaged in frivolous conduct and award of attorney’s fees to the board. The plaintiff-relator filed a Verified Complaint in Mandamus and sought declaratory relief and an injunction, challenging an action taken by the board related to executive session. At an April 9, 2021, meeting, the board went into executive session “to consider the appointment of an employee” during which the commissioners discussed a “succession plan” to transition the deputy director of Portage County Water Resources to the newly created role of interim director. After exiting executive session, the meeting minutes indicated that the board of commissioners agreed to stay the succession plan for the water resources director for the duration of the public health emergency. Brian Ames challenged this action as a violation of Ohio Revised Code (RC) 121.22 and later indicated that he filed the action at the request of one of the commissioners who opposed the stay.
On June 24, 2021, the trial court found that the board had not violated RC 121.22, as the action fell under one of the permissible reasons to go into executive session, namely “to consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee.” The next day, the board filed a Motion for a Hearing to Determine Issue of Frivolous Conduct. Frivolous conduct is defined in RC 2323.51(A)(2)(a), and the board chiefly argued that Ames’s claims were “not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, or cannot be supported by a good faith argument for the establishment of new law” and that the claims contained factual allegations that had no evidential support. The board argued that Ames had filed the action for an improper purpose, noting his admission that he had filed the action at the request of a commissioner who disagreed with the board’s actions and arguing that “OMA should not be used as a pretext to bring a lawsuit when a person does not like the policy decision of the board” and that there was “no rational basis” to Ames’s argument.
The trial court held a hearing on the issue of frivolous conduct and ultimately agreed with the board’s contentions and issued an entry that Ames’s action constituted frivolous conduct. Ames appealed on two grounds, first that his due process rights under the 14th Amendment to the U.S. Constitution were violated because “the Board at no time sought a violation of R.C. 323.51(A)(2)(a)(i) [improper purpose]” and the trial court gave “no notice of [its] intention to find Mr. Ames’ conduct frivolous pursuant to R.C. 2323.51(A)(2)(a)(i).” The appeals court rejected this claim, finding that due process is concerned primarily with fundamental fairness instead of technicalities. It went on to find that Ames had been apprised of the nature of the claim of frivolous conduct by the board’s detailed, 45-page brief, which noted the legal and factual basis of its complaint and the nature of its argument that he had filed the brief for an illegitimate purpose and that it lacked any rational basis in law.
Ames also challenged the substantive determination that his lawsuit was frivolous, and the appeals court also rejected this argument. It noted that RC 121.22 permits public bodies to enter into executive session “[t]o consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee.” The court noted that what the board had discussed in executive session related to employment as it had discussed the employee’s job performance and the succession plan, which weighed on a possible promotion. The court rejected Ames’s narrow reading of the provision. He argued that “employment” used in the statute only referred to the hiring of a new employee. The court noted that the term “employment” refers to the state of being employed, not just the hiring process. Thus, the board’s discussion of job performance and promotion fell properly within the realm of permissible reasons to go into executive session. The court ultimately upheld the trial court’s determination that the action was frivolous and the awarding of attorney’s fees to the board.
Ohio district court allows claims to proceed against teacher and aide in case alleging mistreatment of student.
Myers v. Boardman Local School Dist. Bd. of Edn., N.D.Ohio No. 4:21-cv-2048, 2022 U.S. Dist. LEXIS 122221 (July 11, 2022).
https://casetext.com/case/myers-v-boardman-local-sch-dist-bd-of-educ
M.M. is an 11-year-old child who attends school at Boardman Center Intermediate School within the Boardman Local School District. M.M. is diagnosed with autism spectrum disorder and other learning disabilities. Patricia Passarelli worked as an intervention specialist at M.M.’s school and taught a class of children with special needs, learning disabilities and/or autism spectrum disorders. Kieran Curl worked as a classroom aide and provided services in Passarelli’s classroom.
Throughout 2020, M.M.’s mother, Sheli Myers, alleged several incidents of alleged mistreatment of M.M. by Curl. On Jan. 19, 2021, M.M. approached Curl to request cold water. Passarelli was out of the classroom at the time. After M.M. returned to his desk, Curl walked up behind M.M. holding a stapler and a note for Myers stating that she should send him to school with his own bottled water, especially on days when there was gym class. When Passarelli returned to the classroom, she “found M.M. in distress and immediately noticed the large, yellow note attached to M.M.’s head.” Passarelli “dug the staples out of M.M.’s head and removed the note.” Passarelli did not report Curl’s action to anyone at that time, including Myers. When Myers called Passarelli, Passarelli assured Myers that she would “handle the incident.” According to Myers, Passarelli had never followed through after any previous incident to stop Curl’s continued abuse. Because of this and the nature of the abuse, Myers brought the incident to the attention of the board of education. The board gave Curl a warning and allowed her to return to the classroom.
Myers filed a complaint, asserting several claims for relief. The defendants filed motions to dismiss. Myers’ first claim alleged that M.M. had the constitutional right to personal security and bodily integrity and to be free from arbitrary governmental conduct that lacked all socially redeeming value. It further alleged that Curl’s conduct, which allegedly was authorized, condoned and acquiesced to by Passarelli, violated those rights in a manner that shocked the conscience. The court concluded that when the facts were considered in a light most favorable to Myers, the complaint alleged sufficient allegations to withstand the motion to dismiss. These allegations included Passarelli initially admitting to Myers “that she was aware of the [January 19] incident and confirmed that she personally “‘dug’ the staples out of M.M.’s head,” but then “covered up and failed to report” Curl’s behavior. The court also found that Passarelli did not adequately explain how this behavior could not be construed as the type of active involvement in the alleged excessive force that would be sufficient to state a claim. As a result, the court denied the motions to dismiss.
The court granted the motions to dismiss on the second claim, which alleged that Curl and Passarelli denied M.M. equal protection in violation of the 14th Amendment. To prevail on this claim, Myers had to show that the defendants initially treated M.M. differently — because he is a student with disabilities — than similarly situated students who were like him in all relevant respects. The court did not find any facts in the complaint that identified similarly situated students or any circumstances where such students were treated differently than M.M.
In her third claim, Myers alleged that Passarelli was Curl’s direct supervisor and had a duty to exercise reasonable care in hiring, retaining and supervising employees and direct reports. Myers claimed that by failing to supervise, discipline or terminate Curl after her repeated mistreatment and abuse of M.M., the board and Passarelli wantonly and recklessly disregarded the “great probability of substantial harm that would befall M.M.” Passarelli argued that she was not Curl’s employer and should not be liable for negligent supervision of Curl. However, the court concluded that the issue of whether Passarelli had a duty to supervise Curl was likely dependent on Ohio statutes and/or the board’s particular policies. As a result, they allowed the final claim to withstand a motion to dismiss.
TEACHER — SUBSTITUTE — LICENSURE
Appeals court determines trial court did not abuse its discretion by failing to require Ohio Department of Education (ODE) to provide records of its investigation as evidence in a licensure hearing.
Bennett v. Ohio Dept. of Edn., 2022-Ohio-1747.
https://www.supremecourt.ohio.gov/rod/docs/pdf/4/2022/2022-Ohio-1747.pdf
Donald Bennett was a substitute teacher who worked as a substitute for approximately nine years in various school districts, working over 500 times in classrooms from fourth through 12th grades. In November 2017, he was substituting in a study skills class at the middle school in the Valley Local School District. There was a dispute in the classroom involving a student who was flicking a Harry Potter wand pen. Bennett asked the student to give him the pen. Allegedly, the teacher grabbed the student by the shirt collar and said “Give it to me or I’ll stab you with it.” Several students witnessed the incident and testified or gave statements about it.
After speaking to the students, the principal believed that Bennett had acted inappropriately. After speaking to Bennett, the principal removed him from the substitute list. Following the incident, the Ohio Department of Education (ODE) issued a notice of opportunity for hearing to Bennett to determine whether to limit, suspend or revoke his substitute license. The notice included allegations of misconduct, informed Bennett that his actions violated Ohio Revised Code (RC) 3319.31(B)(1) and listed five misconduct counts, including the incident in the classroom; three prior criminal charges in 2008, 1997 and 1992; and six incidents of conduct unbecoming to the teaching profession for failing to fully disclose his criminal history on his applications for ODE licensure.
Following a hearing, the hearing officer concluded that Bennett’s testimony about the classroom incident was not credible and that the students’ testimony, while not identical, recounted substantially the same details. Her recommendation was that Bennett’s conduct in the classroom in November 2017 constituted conduct unbecoming a teacher and that the misconduct merited revocation of his teaching credential. She also recommended that Bennett should be barred from reapplying for a teaching license for one year and only after he completed classroom management and anger management training. The State Board of Education (SBOE) accepted the hearing officer’s recommendation and revoked Bennett’s teaching license. Bennett appealed to the Scioto County Court of Common Pleas, which affirmed SBOE’s actions.
Bennett presented two assignments of error: First, he alleged that the trial court committed an abuse of discretion by failing to require ODE to produce all the evidence Bennett requested, failing to interview all potential witnesses and failing to admit evidence related to an interview of Bennett by an ODE attorney as part of an investigation. Second, that the trial court’s determination that the SBOE’s decision did not violate Bennett’s due process rights was in error.
The appeals court concluded that the trial court had not abused its discretion by failing to require ODE to produce all of the requested evidence. The court cited RC 3319.311 which provides that the investigative records Bennett sought were confidential.
On his second assignment of error, the appeals court noted that, in an administrative action, the respondent is not entitled to a full evidentiary hearing. The administrative agency has met its duty regarding discovery if it supplies the respondent with sufficient information to enable him to properly respond to the charges and an opportunity to be heard. The court concluded that Bennett had received the due process protections generally afforded in administrative agency proceedings.
Sixth Circuit Court of Appeals rejects teacher’s claims that district’s termination violated his due process rights when he had “implied tenure.”
Hasanaj v. Detroit Pub. School Community Dist., 35 F.4th 437 (U.S. 6th Cir. 2022).
https://casetext.com/case/hasanaj-v-detroit-pub-schs-cmty-dist
Kola Hasanaj was employed by the Detroit Public Schools Community District as a teacher for 10 years under a series of contracts. After about seven years, the district stopped sending contract renewal notices to Hasanaj. He received “ineffective” ratings in the three years that followed, so the district dismissed him as required by Michigan state law. Hasanaj sued the district, alleging that it had violated his procedural due process rights when it terminated him after “act[ing] with the understanding that he had tenure.” The district court dismissed the lawsuit. Hasanaj appealed.
On appeal, the court affirmed the district court’s decision. The court found that because Hasanaj had not satisfied the requirements of Michigan’s statutory tenure system, he did not have a protected property interest in continued employment. The court rejected Hasanaj’s argument that he had “implied tenure” and relied on Ohio case precedent that held that “a non-tenured teacher has no ‘expectancy’ of continued employment, whatever may be the policies of the institution, where there exists a statutory tenure system.” The court found that because Hasanaj did not satisfy the statutory probation requirements to acquire tenure, he was an at-will employee and lacked a protected property interest in his job. A contract or tacit understanding cannot override those statutory requirements.
The court also found that Hasanaj lacked a protected property interest in the “expectation” that the district was required to follow the teacher evaluation statute in order to fire him under state law. The court found that Hasanaj had no “protected entitlement” in the district exercising its “discretion” to fire him. The basic principle of at-will employment is that an employee may be terminated for a good reason, bad reason or no reason at all. The court found that without a property interest in his job, Hasanaj lacked any protected interest in governmental compliance with related state-law procedures.
The court also rejected Hasanaj’s argument that he was deprived a property interest in his Michigan teaching certificate. Hasanaj argued that by assigning him three consecutive ineffective ratings, the district rendered his license “valueless” because a dozen school districts refused to hire him. The court found that the district neither rendered Hasanaj’s license “valueless,” nor did the district deprive him of his property interest in the teaching certificate. Hasanaj still holds a valid teaching certificate. His certificate was never suspended or permanently revoked. Hasanaj remained entirely free to obtain employment with another Michigan school district. For similar reasons, the court also rejected Hasanaj’s claims that he was deprived of his liberty or property interest in his right to contract.
For these reasons, the court rejected Hasanaj’s claims that he was deprived of a protected “property” or “liberty” interest as required for a procedural due process claim and affirmed the decision of the district court to dismiss the case.
Appeals court upholds pretermination notice sent to employee fired from school district for illegally disposing of animal remains and lying to law enforcement.
Schaffer v. Covington Exempted Village School Dist. Bd. of Edn., 2022-Ohio-1189.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2022/2022-Ohio-1189.pdf
Plaintiff Schaffer was terminated by the district from his position as a bus driver. The termination stemmed from an incident in which Schaffer allegedly lied to police about killing a dog and disposing of its remains in violation of an order to quarantine the dog for 10 days after it bit his grandson. Schaffer told police he disposed of the remains in a dumpster at the local high school because he thought putting them in his own garbage was illegal. He later admitted to being afraid of “getting in trouble.” Schaffer admitted these actions to the school superintendent, who informed Schaffer that he would be informing the authorities. Schaffer was then placed on administrative leave by the district, and the district sent him a letter informing him that his conduct could result in termination. The district then also scheduled a disciplinary hearing where he would be given the opportunity to present evidence and would have the right to have union representation present.
The district conducted the hearing, at which “Schaffer began the hearing by backpedaling on whether he had lied to or even spoken to a sheriff's deputy about the killing and disposing of the dog. But he then conceded again that he had lied to the sheriff's deputy.” The board later met and unanimously decided to terminate Schaffer’s contract. The superintendent sent a certified letter to Schaffer “stat[ing] that
the board had terminated Schaffer's bus driver contract and that ‘[t]he board's decision was based on [Schaffer’s] dishonesty and immoral conduct, as summarized in the Notice of Disciplinary Hearing that was provided to [Schaffer] on January 25, 2021.’” The United States Postal Service tracking system indicated that the letter was delivered to an individual on Feb. 20; however, no signature appeared on the green card returned by the postal employee who was responsible for delivering the letter. Schaffer would later testify that he did not find the letter until Feb. 22 in his mailbox.
Schaffer appealed the termination to the court of common pleas on March 3. The board filed a motion to dismiss the complaint on the grounds that it was not timely. Ohio Revised Code (RC) 3319.081(C) requires such appeals to be filed within 10 days of receipt of the letter. The trial court agreed with Schaffer that his appeal was timely because he did not “receive” the letter until Feb. 22, which would mean that his March 3 appeal was timely. The trial court further found that the board’s decision to terminate Schaffer was an unconstitutional deprivation of Schaffer’s due process rights because the Jan. 25 pretermination notice failed to include all charges against him, specifically because the notice did not specify that he was potentially being charged with immoral conduct.
The appeals court reversed this decision and remanded the case to the trial court. The termination was governed under RC 3319.081(C), which provides, in part: "contracts may be terminated only for violation of written rules and regulations as set forth by the board of education or for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, or any other acts of misfeasance, malfeasance, or nonfeasance." The court found that the board’s pretermination notice was sufficient to alert Schaffer that his criminal conduct and the subsequent cover-up attempt were the bases for termination. The fact that the notice did not include the specific terms “dishonesty” or “immoral conduct” was not a constitutionally fatal flaw in the notice, as the notice provided him notice of the charges, an explanation of the board’s evidence and the opportunity to present his side of the story, as required by Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 546 (1984). The appeals court remanded the case to the trial court to make the determination as to whether the termination decision was arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence.
Tennessee district court enjoins federal agencies from implementing their Title IX guidance on transgender students in Ohio and 19 other states.
Tennessee v. U.S. Dept. of Edn., E.D.Tenn. No. 3:21-cv-308, 2022 U.S. LEXIS 125684 (July 15, 2022).
https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-23-order.pdf
On Jan. 20, 2021, President Joe Biden signed an “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The executive order declared that “laws that prohibit sex discrimination … prohibit discrimination on the basis of gender identity or sexual orientation.” The president directed federal agencies to “fully implement statutes that prohibit sex discrimination” consistent with the administration’s interpretation.
In response to the president’s executive order, on June 22, 2021, the U.S. Department of Education (DOE) published in the Federal Register an “interpretation” of Title IX. DOE recognized that the interpretation represented a change in position, explaining the purpose of the interpretation was “to make clear that the department interpreted Title IX’s prohibition on sex discrimination to encompass discrimination based on sexual orientation and gender identity.” The interpretation stated that DOE “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department” and that the interpretation “will guide the Department in processing complaints and conducting investigations.”
Subsequently, on June 23, 2021, DOE issued a “Dear Educator” letter to directly notify those subject to Title IX of the department’s interpretation. The Dear Educator letter reiterated that “Title IX’s protection against sex discrimination encompasses discrimination based on sexual orientation and gender identity” and explained that DOE “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity.” A fact sheet accompanied the Dear Educator letter and expounded on DOE’s interpretation of Title IX, explaining that “discrimination against students based on their sexual orientation or gender identity is a form of discrimination prohibited by federal law.” The fact sheet also noted that regulated entities “have a responsibility to investigate and address sex discrimination, including sexual harassment, against students because of their perceived or actual sexual orientation or gender identity.” The fact sheet stated that DOE “can provide information to assist schools in meeting their legal obligations,” and offered examples of specific conduct related to sexual orientation and gender identity that DOE would investigate as incidents of discrimination under Title IX.
On June 15, 2021, the Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance Document” that explained the “EEOC’s established legal positions on LGBTQ+ related matters.” After summarizing Title VII’s general requirements, the Technical Assistance Document provided examples of employer conduct that would constitute discrimination through a series of questions and answers. Specifically, the Technical Assistance Document purported to explain employers’ obligations with respect to dress codes, bathrooms, locker rooms, showers and use of preferred pronouns or names. The Technical Assistance Document cautioned that it “does not have the force and effect of law and is not meant to bind the public in any way.” Instead, the Technical Assistance Document was “intended only to provide clarity to the public regarding existing requirements under the law.” The Technical Assistance Document invited individuals to file a charge of discrimination with EEOC if they believed their rights under Title VII, as explained within the document, had been violated.
On Aug. 30, 2021, 20 states filed a complaint challenging the legality of the guidance documents issued by DOE and EEOC in response to the president’s executive order. Specifically, the states contended that the guidance documents were procedurally and substantively unlawful under the Administrative Procedure Act (APA) and U.S. Constitution. They sought preliminary and permanent injunctive and declaratory relief and a judgment setting aside the guidance documents.
The court began its analysis with a finding that the plaintiff states had standing to bring the lawsuit. The court found that the states had adequately demonstrated an injury because the federal guidance documents required the states to choose between the threat of legal consequences — enforcement action, civil penalties, and the withholding of federal funding — or altering their state laws to ensure compliance with the guidance and avoid such state action. The court found that this choice constituted an intrusion on the states sufficient to constitute an injury for standing purposes.
The court also reviewed whether the federal guidance documents constituted “final agency action.” The APA limits judicial review to “final agency action for which there is no other adequate remedy in a court.” The federal agencies contended that the challenged guidance documents were “non-binding interpretations” that “simply inform the public of the agencies’ interpretation of Titles VII and IX, without purporting to alter obligations thereunder.” The agencies highlighted that the guidance documents expressly stated that they did not have the force of law. However, the court concluded that the guidance documents stated the agencies’ latest and final position regarding the scope of Titles VII and IX and affirmed that they would be fully enforcing the federal laws consistent with those positions. As a result, the court found that the guidance documents constituted final agency action.
Finally, the court evaluated whether a preliminary injunction was appropriate by considering: (1) whether the states showed a likelihood of success on the merits; (2) whether the states would be irreparably injured absent an injunction; (3) whether issuing an injunction would harm the federal agencies; and (4) whether an injunction was in the public interest.
The court found that the plaintiff states demonstrated a likelihood of success on the merits of their claim that the federal agencies did not comply with the APA’s notice and comment requirements. The APA requires federal agencies to publish a notice about any proposed rules, allow the public to comment on the rule, and, after considering the comments, make appropriate changes and include in the final rule a “concise general statement” of its contents. In this case, the court found that because the new federal guidance went “beyond putting the public on notice of pre-existing legal obligations and reminding affected parties of their existing duties,” they constituted legislative rules that required notice and comment procedures under the APA. As a result, the court held that the plaintiff states had demonstrated that they were likely to succeed on their claim that the federal guidance documents were invalid because the federal agencies failed to comply with the required notice and comment procedures under the APA.
The court also found that the plaintiff states had carried their burden of showing irreparable harm. Absent an injunction, the court believed the plaintiff states’ ability to enforce their conflicting state laws would remain hampered, and the states would continue to face substantial pressure to change their state laws to avoid material legal consequences. The court acknowledged that an injunction would also harm the federal agencies, since they would be prevented from “fully enforcing” the challenged guidance. However, the court held that the federal agencies did not have a legitimate interest in enforcing the guidance documents that the plaintiff states had shown were likely to be procedurally invalid. As a result, the court found the second and third factors to weigh in favor of a preliminary injunction.
Finally, the court found that the public had an interest in “agencies promulgating rules that have the effect of law through procedures mandated by Cong
ress through the APA.” Because there were questions as to the federal agencies’ compliance with the APA, the court held that the public would benefit from a preliminary injunction.
For these reasons, the court granted the plaintiff states’ motion for a preliminary injunction and enjoined the federal agencies and all their “respective officers, agents, employees, attorneys and persons acting in concert or participation with them” from implementing the interpretation, Dear Educator letter, fact sheet and the Technical Assistance Document against the 20 plaintiff states. The injunction applies only to the 20 states that participated as plaintiffs in the case, including Ohio; it does not apply nationwide. The preliminary injunction will remain in effect pending the final resolution of the matter, or until further orders from the district court, the U.S. Court of Appeals for the Sixth Circuit or the Supreme Court of the United States.
Appeals court affirms denial of unemployment compensation to instructional assistant terminated for violating district policies regarding reporting allegations of child abuse and making unauthorized recordings of students and staff.
Brown v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 21AP-467, 2022-Ohio-1218.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2022/2022-Ohio-1218.pdf
The plaintiff Terressa Brown was terminated from her position as an instructional assistant by her employer Columbus City Schools (CCS) for just cause. The termination was due to an alleged failure to report allegations of child abuse and a violation of a school policy against making video recordings without consent. The incident stemmed from a meeting with a child in which the child informed Brown that they had been abused by the assistant principal during a meeting with Brown and the child’s parent. Brown did not report the incident to her superiors at CCS, but she testified that she did report it to Franklin County Children’s Services. Brown then made a video of the assistant principal grabbing the child and “shoving” him under his desk and shared the video with the child’s parent. Brown reported that children’s services investigated the suspected child abuse, but they determined that no action would be taken. CCS claimed that Brown did not obtain proper parental consent to make the recording, as she obtained a handwritten note giving permission and failed to use CCS’s approved form. Brown was terminated in February 2020 for her actions because she violated the policy regarding school recordings and for allegedly failing to follow proper procedures for reporting suspected abuse.
After her termination, Brown applied for unemployment compensation benefits through the Ohio Department of Job and Family Services (ODJFS). The ODJFS hearing officer determined that because Brown was terminated for violating CCS policies regarding reporting child abuse to her superiors and recording individuals improperly, she had been terminated for “just cause” and was not entitled to unemployment compensation. Brown then appealed this determination to the commission and ultimately to the court of common pleas, both of which upheld the hearing officer’s determination.
The appeals court upheld the commission and trial court’s denial of unemployment compensation. Ohio Revised Code 4141.282 requires reviewing courts to reverse, vacate, modify or remand decisions by the commission only when their decisions are “unlawful, unreasonable, or against the manifest weight of the evidence.” Brown had argued that the facts did not support a determination that she was fired for just cause and that denying her unemployment compensation was contrary to public policy, as she “was trying to protect a child and inform a concerned parent.”
The court rejected Brown’s arguments, finding that Brown failed to follow CCS policy and was thus terminated for just cause and was not eligible for unemployment compensation. The court noted that an employee is terminated for “just cause” when they commit an act that “ordinarily intelligent person would regard as a justifiable reason for discharging an employee." CCS had a specific protocol for reporting incidents of abuse that required an employee in Brown’s position to report allegations of abuse to the building principal or the principal’s superior. The policy also required a supervisor to be present for reporting the incident to a parent. Because Brown failed to follow these steps, her termination was for just cause. The court also noted that she violated policy by making a video recording without consent. Lastly, the court rejected arguments that the termination and denial of benefits violated public policy because Brown did not articulate the specific principle violated.