In this issue: Affirmative Action • Construction • Defamation • First Amendment • First Amendment – Retaliation • Gender Identity • Individuals With Disabilities • Open Meetings Act • SERB – Authority • Statute Of Repose • Tax – Valuation/Real Property • Teacher Licensure • Title VII
U.S. Supreme Court holds that Harvard College and the University of North Carolina’s admissions programs violate the equal protection clause.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S.Ct. 2141 (2023).
https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
In 2014, Students for Fair Admissions filed separate lawsuits against Harvard College and University of North Carolina (UNC), alleging that the universities’ undergraduate admissions practices violated Title VI of the Civil Rights Act of 1964 by discriminating against Asian Americans in favor of white applicants. The lower courts upheld the schools’ limited use of race as a factor in admissions, concluding that the schools’ admissions programs comported with Supreme Court precedent on the use of race in college admissions.
On appeal, the U.S. Supreme Court reversed the lower courts’ rulings and held that the admissions programs used by UNC and Harvard College violated the Constitution’s equal protection clause, which bars racial discrimination by government entities. Writing for the majority, Chief Justice John Roberts began with a review of the Supreme Court’s past decisions interpreting the equal protection clause. Those decisions, he concluded, reflected the clause’s “core purpose” of “doing away with all governmentally imposed discrimination based on race.” He emphasized that the Supreme Court had historically allowed universities to use race-based admissions programs “only within the confines of narrow restrictions.”
Roberts indicated that the Harvard and UNC programs did not comply with those narrow restrictions, since the programs “lacked sufficiently focused and measurable objectives warranting the use of race.” Both programs considered race as part of their admissions program to achieve “commendable goals,” such as “training future leaders in the public and private sector” and “promoting the robust exchange of ideas.” However, Roberts determined that these goals were too vague for courts to measure since it would be difficult to determine whether leaders have been adequately trained or whether the exchange of ideas was “robust.”
The majority also found that the schools’ programs used race in a “negative” manner, despite the court’s admonition that “an individual’s race may never be used against him in the admissions process.” Although both universities contended that an applicant’s race was never a negative factor, Roberts wrote, “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” Moreover, Roberts added, the programs also were “infirm” due to their reliance on prohibited racial stereotyping — the idea that “minority students always (or even consistently) express some characteristic minority viewpoint on any issue." The court held that such stereotyping can only cause continued hurt and injury, contrary to the “core purpose” of the equal protection clause.
Finally, Roberts observed that the Harvard and UNC programs lacked a “logical end point.” The court flagged prior opinions from the court that repeatedly emphasized the importance of implementing a termination point for race-based admission programs. Both Harvard and UNC acknowledged that their programs did not have an end date. As a result, the court found “no reason to believe that respondents will — even acting in good faith — comply with the equal protection clause any time soon.”
The majority stressed that the court’s decision did not bar universities from ever considering race on a case-by-case basis. According to the majority opinion, schools can consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” However, the majority cautioned that a “benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.”
Ohio court of appeals reverses trial court’s dismissal of case involving school construction dispute after homeowners failed to join OFCC as a necessary party.
Brown v. Reading Community School Dist. Bd. of Edn., 2023-Ohio-2565.
https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2023/2023-Ohio-2565.pdf
Stephen and Andra Brown live downhill from several school buildings that the Reading Community City School District renovated. In October 2017, severe flooding washed out the Browns’ landscaping and flooded their basement. In September 2021, the Browns filed suit against the district, alleging the district negligently caused this damage to the Browns’ property.
The district moved to dismiss the complaint, asserting the Browns’ claim was barred by the applicable statute of limitations. The trial court determined the Browns’ claim was timely, because the Browns did not notice damage to their property until October 2017. According to the trial court, the Browns’ statute of limitations for the lawsuit didn’t expire until October 2021.
In February 2022, the district moved to join the Ohio Facilities Construction Commission (OFCC) as a party. The district’s motion argued that OFCC was the majority owner of the project at the time the Browns’ claim accrued and the district merely served as an agent of the state. As a result, the district argued that complete relief could not be afforded unless OFCC joined the litigation. Importantly, at the time the district sought to declare OFCC a necessary party, the Browns’ statute of limitations had expired.
The trial court concluded that OFCC was a necessary party and granted the district’s motion but did not dismiss the Browns’ lawsuit. Instead, the trial court acknowledged it would lose its jurisdiction to the court of claims if OFCC was added, given that OFCC is a state agency. As a result, the trial court gave the Browns the option of either joining OFCC on their own or voluntarily dismissing the action.
The Browns did not pursue either option. Instead, they filed a petition to remove their existing lawsuit to the court of claims and simultaneously moved to amend their complaint to add OFCC as a defendant. However, because OFCC had not yet been added as a party, the Court of Claims denied the Browns’ petition.
After their unsuccessful attempt in the court of claims, the Browns then made a motion in the trial court for relief from judgment in an effort to undo the trial court’s finding that OFCC was an indispensable party. The trial court denied the motion and dismissed the entire complaint for failure to join a necessary party. The Browns appealed and argued that the trial court abused its discretion in denying relief from its decision declaring the OFCC a necessary party.
On appeal, the court of appeals agreed with the Browns. The court held that although the trial court determined that OFCC was an indispensable party, it never considered whether joining OFCC was actually feasible. In this case, because the statute of limitations had expired at the point when OFCC was declared a necessary party and because the Hamilton County courts lacked jurisdiction over OFCC because it is a state agency that must be sued in the court of claims, OFCC could never be added as a party before the trial court.
The court of appeals did not find sufficient indication in the record to support the trial court’s conclusion that OFCC was an indispensable party. The court held that the school district could file a separate subrogation action against OFCC, thereby mitigating any prejudice to the district in the event that OFCC was actually liable for any ultimate damage proven by the Browns. In contrast, the prejudice to the Browns from the trial court’s order was “obvious and harsh.” The court also highlighted the speculative nature of the trial court’s finding regarding OFCC’s role in causing the Browns’ alleged damages. As a result, the court rejected the trial court’s finding that OFCC was an indispensable party and held that the trial court wrongfully dismissed the Browns’ complaint. The case was remanded to the trial court for further proceedings.
Appeals court upholds trial jury decision that appellant defamed appellee by falsely accusing appellee of engaging in criminal conduct involving misappropriation of funds.
Holtrey v. Wiedeman, 2023-Ohio-2440.
https://www.supremecofurt.ohio.gov/rod/docs/pdf/12/2023/2023-Ohio-2440.pdf
Troy Holtrey was a teacher with over 30 years of experience and the head boys tennis coach at Springboro High School. On Aug. 5, 2020, Holtrey filed a complaint against Douglas J. Wiedeman, alleging that Weideman had defamed him, which prevented him from being hired as the head coach of the high school’s basketball team for the 2020-21 school year. Holtrey alleged that Wiedeman had falsely accused him of engaging in “criminal and/or improper conduct” that involved stealing or misappropriating money in his prior roles as the basketball coach and athletic director between 1991 and 2012. While Holtrey was coach and athletic director, there had been an incident involving theft of funds. Holtrey had been a witness and source of information to the police in that matter but was not involved in the theft. Holtrey also requested that the court permanently enjoin Wiedeman from making similar defamatory statements about him in the future.
Wiedeman filed a motion for summary judgment, which the court denied. As part of that decision, the trial court found that Holtrey properly alleged an actionable claim for defamation per se against Wiedeman based on his statements about Holtrey. Since Holtrey was a private person for purposes of the claims, Wiedeman’s statements were not subject to a qualified privilege.
The matter was heard by a jury in a three-day trial. The jury found that Wiedeman’s comments about Holtrey were defamatory and awarded Holtrey $120 in compensatory damages. The court also granted Holtrey's request for a permanent injunction against Wiedeman, because his speech had been defamatory, even though the injunction would serve as prior restraint on Wiedeman’s speech. The trial court determined that "a limited injunctive remedy under closely defined procedural safeguards against statements made of the same nature as were involved in this case is permissible." Wiedeman was enjoined from publicizing any statements alleging that Holtrey engaged in any criminal or improper conduct involving the theft or misappropriation of any money during his career as head coach of the Springboro boys basketball team or athletic director with the Springboro Community City School District from 1991 to 2012.
The appeals court considered Wiedeman’s appeal, which argued that the trial court incorrectly denied Wiedeman’s motion for summary judgment and incorrectly held that: (1) Holtrey was a private person for purposes of his defamation claim against Wiedeman; (2) Wiedeman's statements about Holtrey presented an actionable defamation claim; and (3) Wiedeman's statements about Holtrey were not subject to a qualified privilege. Wiedeman also argued that the injunction on his future speech was unconstitutional prior restraint.
On the first issue, the appeals court agreed with the trial court that Holtrey was a private person for purposes of the defamation claim. Wiedeman argued that Holtrey should have been considered a limited-purpose public figure because he was a public employee who served as a head coach and because Holtrey played a significant part in the earlier boosters’ embezzlement scandal. The appeals court agreed that the current controversy from which the defamation arose was not the embezzlement scandal but Holtrey’s 2020 attempt to be hired as the boys basketball coach. Although Holtrey might have been a limited-purpose public figure during the earlier embezzlement scandal, that status did not continue at the time of Wiedeman’s statement.
On the second question, whether Wiedeman’s statements present an actionable defamation claim, the appeals court considered Wiedeman’s argument that they were merely his personal opinion and that he was urging others to review the records and come to their own conclusions. The appeals court however agreed with the trial court, finding that Wiedeman’s statements were not merely opinions but instead were statements which resulted in defamation per se. This means that damages were presumed because Wiedeman implied that Holtrey was guilty of indictable criminal offenses that involved moral turpitude.
On the third question, whether Wiedeman’s statements were subject to a qualified privilege, the court noted that qualified privilege is intended to protect speakers in circumstances where there is a need for full and unrestricted communication concerning a matter in which the parties have an interest or duty. The court stated that it is well established that parents and educators share a common interest in the training, morality and well-being of children in their care. However, Wiedeman had no children enrolled in the Springboro Community City School District, and he had also not taken any issue with Holtrey serving as head coach of the tennis team. Thus, Wiedeman could not establish qualified privilege because his publication was made with the “clear intention” of preventing Holtrey from being hired. It was not meant to protect the sanctity of Springboro Community City Schools.
On the issue of prior restraint, the appeals court disagreed with Wiedeman’s argument that the trial court’s injunction prohibiting him from publicizing statements regarding Holtrey was a violation of the First Amendment. The appeals court found that the trial court’s injunction was extremely limited and narrowly tailored. The injunction prohibited Wiedeman from publicizing any statements regarding Holtrey engaging in any criminal or improper conduct involving the theft or misappropriation of any money during his career as head coach of the Springboro boys basketball team or athletic director of the Springboro Community City School District from 1991 to 2012. The court concluded that this injunction did “nothing more than bar Wiedeman from continuing to defame Holtrey in the same manner the jury had already found him liable.” Because the First Amendment does not protect any individual who knowingly makes false statements or expresses opinions that imply false statements, the trial court’s injunction was not an error.
Sixth Circuit applies Mahanoy and upholds school’s discipline of student who created fake Instagram profile impersonating a teacher, finding that the district had the authority to regulate his off-campus speech because they reasonably forecasted that it would create a material disruption to school activities.
Kutchinski v. Freeland Community School Dist., 69 F.4th 350 (6th Cir.2023).
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0117p-06.pdf
Plaintiff student Kutchinski and two other students in the Freeland Community School District created and maintained a fake Instagram profile impersonating one of the teachers at the district, Steven Schmidt. Kutchinski created the account and then provided the login information to the other students. The account was private, meaning that the users had to accept any requests to follow the account, and they accepted several follow requests. The account was created on a Friday and over that weekend, the other students with whom Kutchinski shared the login credentials began to add posts on the Instagram account, which became more sexualized and offensive, including: a post about using hypodermic needles; photos and comments about the teacher’s wife; sexual and threatening comments toward a colleague; and offensive language about a disabled student at the district. By the following Sunday, Schmidt and the colleague referenced on the account had discovered its existence and reported it to the high school’s principal. The account was still active the following Monday, and Schmidt’s colleague reported feeling humiliated “because the students know about it,” and she reportedly cried in front of one of her classes. Other teachers also reported classroom disruptions connected to the account. Kutchinski and the other students deleted the account around lunchtime. Despite this, the principal carried out an investigation throughout the day and eventually identified the three students responsible for the account.
Kutchinski was given a five-day suspension for “impersonating a staff member by creating a fake on line [sic] account, posting to it, and sharing online log in [sic] information with others who posted additional inappropriate material.” The letter to his parents also made clear that he could be subject to further punishment based on the investigation. After a hearing attended by Kutchinski, his parents and legal counsel, Kutchinski was given a 10-day suspension. The parents filed suit in federal court against the district, the principal and the superintendent under Sec. 1983, alleging that the suspension violated Kutchinski’s First and 14th Amendment rights. Specifically, they argued that: (1) the district was not empowered to regulate Kutchinski’s off-campus speech in creating the account under the First Amendment; and (2) the school rules which served as the basis for the suspension were unconstitutionally vague. The district court granted summary judgment in favor of the defendants, and the plaintiffs appealed.
The Sixth Circuit ultimately affirmed the district court’s grant of summary judgment. Turning first to the First Amendment claim, the court noted that while students generally do not shed all their First Amendment rights at school, such rights are subject to some restrictions and regulation by the school district. There are four categories of speech that schools may regulate: (1) indecent, offensively lewd or vulgar speech uttered during a school assembly on school grounds; (2) speech during school or at a school-sponsored event that schools “reasonably regard as promoting illegal drug use;” (3) “speech in school-sponsored expressive activities” if the schools’ “actions are reasonably related to legitimate pedagogical concerns;” and (4) on-campus and some off-campus speech that “materially disrupts classwork or involves substantial disorder or invasions of the rights of others.” Here, because the school’s actions concerned Kutchinski’s off-campus speech, the fourth category was implicated.
In determining whether the district properly regulated the student’s speech, the court applied the recent Supreme Court decision in Mahanoy Area School District v. B.L., 594 U.S. ___ (2021). In Mahanoy, the Supreme Court noted that the district’s ability to regulate off-campus speech is diminished compared to the authority to regulate on-campus speech. The Mahanoy court outlined a spectrum of the types of speech. On one side was speech that was almost certainly within the school’s ambit of authority to regulate and on the other, speech that was almost certainly outside it. In the middle of the spectrum is “speech that criticizes or derides school administrators, teachers, or other staff members” or “involves criticism or hurtful remarks about other students.” Because the speech here fell within that middle part of the spectrum, the court determined it was properly regulated by the district.
The court then analyzed whether Kutchinski could be held responsible for the speech of the other students making posts on the account, a point of first impression for the Sixth Circuit. Drawing on similar fact patterns from other circuits, the court held that “when a student causes, contributes to, or affirmatively participates in harmful speech, the student bears responsibility for the harmful speech.” Here, Kutchinski created the account, granted account access to the other contributing students, accepted follower requests and “joked” with the other account holders about their posts. The court went on to note that the applicable standard is not whether disruption actually occurred but rather that district officials could reasonably forecast that the Instagram account and its posts “would cause material and substantial disruption to schoolwork and school discipline.” The court found that the forecast here was reasonable and noted that the principal acted swiftly to address any such disruption. The court noted that a reasonable argument existed for actual disruption having occurred, noting the facts that a teacher cried in front of her students during the day, students were whispering to each other about the account and multiple teachers reported actual disruptions.
Kutchinski secondly argued that the school rules under which he was suspended were unconstitutionally vague under the 14th Amendment, an argument rejected by the court. The court noted case law which stated that “maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures,” and that “[g]iven the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.” Per the court: “A school’s policy is unconstitutionally vague ‘when it either (1) fails to inform ordinary people what conduct is prohibited, or (2) allows for arbitrary and discriminatory enforcement.’” The policy challenged read: “[s]tudents guilty of gross misbehavior, persistent disobedience or having habits detrimental to the school will be suspended or excluded from [the school].” Noting the flexibility historically granted to districts and the dictionary definitions of the key terms, the court found that this policy was not unconstitutionally vague.
Sixth Circuit rules that county commissioner who displayed gun at public meeting in response to a citizen criticizing the commissioners’ support for the Proud Boys is not entitled to qualified immunity on retaliation claim.
MacIntosh v. Clous, 69 F.4th 309 (6th Cir.2023)
https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0114p-06.pdf
At the time of the suit, defendant Ron Clous was a commissioner on the Grand Traverse County Commission, a public body. The commission held a public meeting via Zoom on Jan. 20, 2021. During the public comment section of the meeting, members of the public criticized the commission’s previous favorable actions toward the Proud Boys, a group they alleged was an extremist hate group and had participated in violent activities. One citizen criticized the commissioners’ embrace of the group, which drew a rebuke from the chair of the commission, which was unusual, given that commissioners typically listened quietly during the public comment period. Then, plaintiff Patricia MacIntosh made comments expressing her concerns and disapproval of the commission’s invitation to the Proud Boys to speak at a previous county commission meeting, and she requested that the commission make a public statement condemning the group’s violent behavior. In response to her comment, Clous moved out of frame to retrieve a high-powered rifle and then returned and displayed it to MacIntosh and the other members of the public viewing the meeting. MacIntosh reports that she felt physically threatened and intimidated by this action, and she claimed that this intimidation has prevented her from speaking at subsequent meetings, including those to address Clous’ conduct. Clous’ action drew expressions of concern and fear throughout the community. MacIntosh filed suit against Clous alleging First Amendment retaliation, alleging that his actions were meant to intimidate her and chill her free speech. Clous moved to dismiss, asserting qualified immunity.
Public officials are entitled to qualified immunity as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Sixth Circuit formulation of the qualified immunity test is a two-pronged analysis. As the court here recounted: The first prong addresses whether the facts, “when taken in the light most favorable to the party asserting the injury, show the [defendant’s] conduct violated a constitutional right.” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir.2015). The second prong asks whether the right was “clearly established such ‘that a reasonable official would understand that what he is doing violates that right.’”
Applying this framework, the majority determined that Clous was not entitled to qualified immunity, meaning that MacIntosh’s case may proceed. Turning to the first prong, the court first determined that MacIntosh had established that Clous violated her constitutional right. In order to make out a First Amendment retaliation claim, MacIntosh had to demonstrate: (1) that she engaged in First Amendment protected activity; (2) that Clous undertook “an adverse action” that would deter “a person of ordinary firmness from continuing to engage in that conduct”; and (3) that there is a “causal connection” between MacIntosh’s protected activity and Clous’ adverse action. Clous argued that his conduct did not constitute an adverse action that would deter a person of ordinary firmness from continuing to engage in speech. The court rejected this contention, noting that under the law, the deterrent effect on speech “need not be great” in order to constitute a violation. The court also noted the several precedents in which they found that threats of physical violence constitute First Amendment retaliation.
Turning to the facts of the case, MacIntosh alleged that she interpreted the display of the rifle as a message to “shut up or else,” and she reported receiving anonymous threatening phone calls. The court pointed out that “Clous’s silence while flashing his firearm [does not] deprive his action of the capacity to convey a threat. In this world of virtual communication, a message can be conveyed through a live image that, in earlier times, might have required a verbal or written exchange. Virtually smirking and displaying a high-powered rifle at someone during a tension-filled public meeting is pregnant with dangerous meaning.” The court went on to note that the conduct would in fact deter a person of ordinary firmness from engaging in protected activity, noting that it had the real-world effect of deterring MacIntosh and other members of the community from doing so. Clous attempted to rebut by arguing that his display of the weapon was protected First Amendment conduct in itself, but the court pointed out that expression that is retaliatory in nature toward other conduct does not abrogate the fact that it was adverse action against MacIntosh. Clous also argued that his display of a firearm occurred within a discussion about the Second Amendment and that an ordinary person would interpret it in that way. However, the court noted that MacIntosh’s comments were focused primarily on the violent nature of the Proud Boys and not on the subject of gun rights generally.
Secondly, the court turned to the “clearly established” prong of the qualified immunity analysis. In making this determination, the court noted that rights can be clearly established even with novel fact patterns: “Instead, the ‘salient question’ is whether ‘the state of the law’ gives defendants ‘fair warning’ that their actions are unconstitutional.” The court noted that Clous’ actions here fell under the court’s previous determinations that threats of violence constituted unlawful adverse action, even though the threat here was nonverbal, further noting that “[n]o reasonable official could believe that it was permissible to brandish a deadly weapon
in response to MacIntosh’s public comment asking the official to condemn violence.” Thus, qualified immunity was denied.
Federal district court rejects student’s First Amendment retaliation claims related to her parents’ complaints about her basketball coach, finding that parents’ complaints about a coach’s coaching style and methods are not protected speech when the speech can be materially forecasted to cause a substantial disruption or material interference with that program.
Place v. Warren Local School Dist. Bd. of Edn., S.D.Ohio No. CR 2:21-cv-985, 2023 U.S. Dist. LEXIS 129796 (July 26, 2023).
Plaintiff Andrea Place was a student of Warren Local (Washington) Schools and played on the school’s varsity basketball team. In 2019, Place’s parents began complaining to the basketball coach about the amount of playing time Place was getting. They also sent text messages to the coach alleging that the coach was bullying Place and sent a text threatening to “sue” her. Place’s parents then had a meeting with the school principal, an assistant principal, the athletic director and a member of the board of education who was also a family friend. The meeting resulted in an arrangement in which the athletic director agreed to speak with the coach about the parents’ concerns and the parents agreed to cease sending text messages. A few days later, Place started in a varsity game and tore her ACL, an injury which sidelined her for the remainder of the season and the next basketball season. At the end of the year in which she suffered the injury, there was a banquet for the team which allegedly featured a “Wall of Shame,” which included Place.
During Place’s senior year, she tried out for the varsity team but failed to make the roster, and she reported that the coach indicated it was because she would not be happy with her role on the team. Her parents subsequently complained to the principal and superintendent and sent a text message to a different member of the board of education. The superintendent informed the board of the call and informed them that he planned to meet with the parents to address their concerns. At this point, the board member whom the parents texted responded that he wanted to make sure Place was not being punished because of her parent’s complaints, adding that he voted against hiring the coach because of her “biased and unfair treatment of the players.” The superintendent, principal and athletic director met once again with the family to address their concerns and shared that the coach indicated that Place failed to make the team because of her abilities and attitude.
Place filed suit against the coach and the board, alleging: (1) First Amendment retaliation; (2) violation of her substantive due process rights under the 14th Amendment; (3) a supervisory liability claim under Sec. 1983 against the board; (4) Monnell liability against the board; and (5) various state law claims. The court granted summary judgment in favor of the defendants on all federal claims and declined to exercise supplemental jurisdiction over the state law claims.
Turning to the retaliation claim, the court first analyzed whether the coach retaliated against Place for her parents’ speech in violation of the First Amendment. To prove a claim of First Amendment retaliation, the “[p]laintiff must show that she ‘(1) engaged in protected conduct [i.e., constitutionally protected speech]; (2) an adverse action was taken against [her] that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by [her] protected conduct.’”
The court first found that there was adverse action in being cut from the team. Moving to the constitutionally protected speech prong, the court noted that parents have some protected free speech rights associated with educational advocacy but that these rights are not absolute. Because the speech took place in the school context, it falls within the boundaries of Tinker. Applying reasoning adopted in other similar cases, the court determined that parents do not have a protected speech interest in “complaints made in the context of a sports program when the complaints are related to coaching decisions, coaching methods, coaching style, or playing time, when the speech could reasonably be forecasted to cause a substantial disruption or material interference with that program.” The court noted that it was reasonable for the district to forecast disruption and an undermining of coaching authority and rejected Place’s attempt to rely on cases regarding medical advocacy for a child and advocacy in the special education process. The court also stated that the reasoning applies even when the student themselves is not the one engaging in speech.
The court went on to find that Place’s complaints against the board itself were likewise unwarranted. The court noted that even if the speech in question were protected, Place could not prove any negative action taken by the board against her. The court found that school administrators properly addressed and investigated complaints raised by the parents. The court also rejected Place’s substantive due process claims, noting that nothing in the record rises to the level of “shocking the conscience” that would trigger that clause and dismissed the supervisory liability claims.
District court dismisses students’ and parents’ claims that school district’s decision to allow students to use bathrooms that align with their gender identity violates their Constitutional rights.
Doe v. Bethel Local School Dist. Bd. of Edn., S.D.Ohio No. 3:22-cv-337 (Aug. 7, 2023).
https://scholar.google.com/scholar_case?case=7499973457167271035&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Several students who attended middle school in the Bethel Local (Miami) School District and parents of students who attended the school sued the district’s board of education, five board members and the district’s superintendent. The court noted that, in its decision, it would adopt the Sixth Circuit’s convention of referring to transgender individuals by their preferred pronouns.
Anne Roe, a transgender student, began attending Bethel Middle School in January 2020. Initially, under an agreement between Anne, her parents, and the middle school principal, Anne used one of two single-use bathrooms in school during the day. Anne felt ostracized, humiliated and targeted by other students who taunted her for using the separate bathroom. On Dec. 17, 2021, the superintendent decided to permit Anne to use the girls communal restroom. The superintendent applied the board’s anti-harassment policy, which required the district to “employ all reasonable efforts to protect the rights of” individuals subject to what the district determined to be discriminatory conduct. At a public meeting on Jan. 10, 2022, the board president announced, based on advice provided by its attorney: “Our students are using bathrooms aligned with their identity at this time.”
The plaintiffs filed suit on Nov. 22, 2022, and moved for a preliminary injunction on their claim that the board violated the Open Meetings Act at its meeting on Dec. 2, 2022. The plaintiffs alleged five federal claims under 42 USC 1983: (1) a declaratory judgment that Title IX does not require the school district to implement its new bathroom policy; (2) a violation of the parent plaintiffs’ 14th Amendment right to direct the care, custody and control of their children; (3) a violation of the 14th Amendment’s equal protection clause; (4) a violation of all plaintiffs’ First Amendment free exercise of religion rights; and (5) a violation of the Protection of Pupil Rights Amendment (PPRA), 20 USC § 1232h. They also claimed that the district violated Ohio’s constitutional equivalents to the federal equal protection and free exercise clauses.
The court dismissed the plaintiffs’ request for a declaratory judgment. The court noted that it had the authority to enter declaratory relief only in a case of actual controversy. The party seeking declaratory relief must show a substantial controversy between parties having adverse legal interests that is of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. The standard to be met is whether it is likely, as opposed to merely speculative, that the plaintiff’s injury will be redressed by a favorable decision. The court stated: “If the Court found that the School District misinterpreted Title IX when it created its policy, an order stating as much would have no bearing on whether the School District keeps its policy.” A declaratory judgment on whether the policy comported with Title IX would be superfluous and of no real legal effect.
The court dismissed the parents’ claim that the district’s policy constituted a violation of their 14th Amendment right to direct the care, custody and control of their children because it exceeded the Constitution’s text and relevant precedents. The parent plaintiffs alleged that their Fourteenth Amendment right was violated because of the bathroom policy in conjunction with the district’s failure to answer their questions about the implications of the policy and the district’s alleged nonacademic instruction on LGBTQ+ topics.
The court stated that parents’ fundamental right to make decisions concerning the care, custody and control of their child is “far more precious than any property right.” However, when discussing the right, the Supreme Court has never suggested that parents may dictate what or how a public school teaches its students or how it operates its facilities. The court noted an earlier Sixth Circuit case concluding that matters such as school curriculum, the hours of the school day, discipline, timing and content of examinations, individuals hired at the school, extracurricular activities offered and a dress code are issues generally “committed to the control of state and local authorities.”
On the question of the district responding to questions, the court stated that the 14th Amendment does not confer parents with an unfettered right to access information about what their children are learning or to interject how a public school teaches children. Parents have a right to make the initial choice about where their children attend school but no constitutional right to strike down a public school’s choices about curriculum and school operations. Further, it stated that the parents’ 14th Amendment right does not require schools to answer every demand made of them from frustrated parents, no matter how reasonable their frustration may be. The court concluded that the parent plaintiffs failed to state a plausible claim under the 14th Amendment. Their allegations, even if true and construed in their favor, did not invoke a right to dictate a school’s bathroom policy, prevent a school district from educating children or demand that the school answer every question that the parents may possibly have.
The court dismissed the parent plaintiffs’ claim that the district violated the 14th Amendment’s equal protection clause. The plaintiffs noted that the district had adopted an anti-discrimination policy that guaranteed nondiscrimination and equal educational opportunities for protected classes, including religion and gender diversity. The student and parent plaintiffs made claims of unequal treatment, specifically arguing that transgender students and their parents received an educational benefit in using communal intimate facilities in accordance with those students’ “self-declared core identity,” while depriving student and parent plaintiffs of the same benefit.
The court concluded that nothing about the district’s decision to allow Anne to use the girls bathroom denied student plaintiffs access to the school communal bathrooms. As a result, the court felt it was unclear how plaintiffs had been personally subjected to discriminatory treatment.
The court dismissed the parent plaintiffs’ claim that the district violated their First Amendment rights to free exercise of religion. It stated that a plaintiff has the burden of proving a free exercise violation by showing that a government entity has burdened their sincere religious practice under a policy that is not neutral or generally applicable. The court compared the district’s policy to this standard and concluded that it was: (1) facially neutral because it made no reference, overt or implied, to religion or religious conduct; and (2) generally applicable because it restricted religious and nonreligious conduct equally and every student could use the bathroom that corresponded with their gender identity. The district’s policy made no mention of and did not reference religion. The court concluded that, even assuming that the plaintiffs had alleged that the policy lacked neutrality or general applicability, they have not plausibly alleged a substantial burden on their religious practice because of a governmental action that penalized religious activity by denying any person an equal share of the rights, benefits and privileges enjoyed by other citizens. The court concluded that a rational basis for the policy existed in this situation because the district adopted it to not run afoul of federal law, including decisions from the Sixth Circuit and this court, which found that a school violated Title IX and the equal protection clause when it prevented a transgender student from using a bathroom that aligned with their gender identity.
The court dismissed the parent plaintiffs’ claim under PPRA. The court concluded that PPRA does not provide the parent plaintiff with a private cause of action because anything less than an unambiguous declaration in PPRA that it provides an enforceable cause of action failed to suffice. It concluded that, even assuming they did have such a right, they did not allege a plausible claim.
Because it dismissed the federal claims, the court also dismissed the state law claims by declining to exercise supplemental jurisdiction.
Federal district court upholds constitutionality of Ohio district’s anti-harassment and bullying policies that prohibit students from intentionally misgendering students.
Parents Defending Edn. v. Olentangy Local School Dist. Bd. of Edn., S.D.Ohio No. 2:23-cv-01595 (July 28, 2023).
https://casetext.com/case/parents-defending-educ-v-olentangy-local-sch-dist-bd-of-educ
Olentangy Local (Delaware) School District (OLSD) has adopted three policies regarding harassment, bullying and the use of personal communication devices that are intended to “maintain an education and work environment that is free from all forms of unlawful harassment.” The policies prohibit harassment “based on race, color, national origin, sex (including sexual orientation and gender identity), disability, age (except as authorized by law), religion, ancestry or genetic information.”
In February 2023, a parent emailed the district raising a concern that their child could be disciplined pursuant to policies for referring to a fellow student using pronouns different from what that student prefers. The parent was informed by the district’s counsel that “while the children certainly may maintain religious rights of freedom at school, those rights do not relieve them of the obligation to comply” with school policies. As such, the district stated that “a student purposefully referring to another student by using gendered language they know is contrary to the other student’s identity would be an example of discrimination under board policy.”
In May 2023, Parents Defending Education (PDE) filed suit and requested a preliminary injunction on behalf of four parents, each of whom stated their children wished to use pronouns that were consistent with a classmate’s biological sex, rather than the classmate’s “preferred pronouns,” as an expression of their deeply held views.
In assessing the need for a preliminary injunction, the court considered whether PDE established that it was likely to succeed on the merits. PDE argued that the policies unconstitutionally compelled speech, were impermissible viewpoint and content-based restrictions on speech and were overbroad. The district argued that PDE lacked standing to challenge the policies and maintained that the policies were constitutional.
On the issue of standing, the defendants first argued that the families had not suffered an injury-in-fact since none of the students had been disciplined for violating the policies. However, the court concluded that the parents could bring a pre-enforcement challenge since the families were able to demonstrate that they: intended to engage in expression that the free speech clause arguably protects; that their expression was arguably proscribed by the challenged rules; and that they faced a credible threat of enforcement of those rules. Second, the defendants argued that the litigation, even if successful, would not provide a remedy that suitably redressed the alleged harm, because the policies were compelled by Title IX. The court acknowledged that “whether th[e] prohibition against discrimination ‘on the basis of sex’ covers discrimination on the basis of ‘gender identity’ has not been squarely addressed by the Sixth Circuit.” However, the court noted that it was “persuaded that the interpretation of ‘on the basis of sex’ in Bostock does extend to the Title IX context.” Despite this interpretation, however, the court acknowledged that if the policies violated the First or 14th Amendments, as the families alleged, then they must be enjoined even if the district was compelled by Title IX to combat harassment on the basis of gender identity.
In reviewing the First Amendment claim, the court reviewed Tinker and other prior student speech cases, which allowed schools to regulate and punish speech that causes a substantial disruption or invades the rights of others. The court questioned whether a hostile environment — created by harassing language, bullying behavior or discriminatory comments — was enough to constitute a substantial disruption on its own, concluding that it was. “This is especially true,” the court held, “where the hostile environment is created by comments, slurs, and jokes rooted in an individual’s identity and in their personal characteristics.” The court distinguished “verbal bullying” from speech that discussed a political, social or religious perspective in a nonderogatory manner and acknowledged that while a school must allow for civil discussion of sensitive issues, it need not allow for attacks on the social standing of individual students on account of their identity. The court labeled the intentional misgendering of students as “verbal bullying,” indicated that it had the effect of creating a hostile environment for transgender students on account of their gender identity, and found that it caused a substantial disruption that could be regulated by the district.
The court also rejected PDE’s claims that the policies unconstitutionally compelled speech and restricted speech based on viewpoint and content. It also rejected the claim that the policies were overbroad. In reviewing whether the policies unlawfully compelled speech, the court focused on the rationale behind the policy to ensure that such actions were reasonably related to legitimate pedagogical concerns. In this case, the court held that requiring students to use preferred gender pronouns reflected the district’s desire to maintain a safe and civil learning environment, which has long been considered a legitimate pedagogical concern. The court held that the fact that the policies were content-based presented little concern, since the district reasonably believed that the policies would reduce discrimination against transgender students, which the court found to be a compelling interest. The court also rejected PDE’s claims that the policies restricted speech based on viewpoint, finding that the policies applied with equal force to students who identify as transgender as to those who identify as cisgender; to those who seek to denigrate students on account of their transgender identity; and to those who seek to harass students who believe that gender at birth is immutable. The court found the policies to be limited in scope since they prohibited discriminatory speech that rose to a certain severity level and did not prohibit, by contrast, genuine efforts to discuss issues of gender identity or to express beliefs on the topic.
In reviewing the 14th Amendment claim, the court rejected the families’ claims that the policies violated their fundamental rights to make decisions concerning the care, custody and control of their children. The court relied on precedent, which explained that “while parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right to direct how a public school teach their child.” The court found nothing in the policies that suggested they prohibited parents from discussing gender identity issues with their children or reach in some other way into the privacy of families’ homes. Nor was there any suggestion that the policies extended to speech unrelated to school, school activities or fellow students. As a result, the court held that parents do not enjoy a fundamental right to exempt their kids from OLSD’s policies.
For these reasons, the court denied PDE’s motion for preliminary injunction. PDE has appealed this decision to the Sixth Circuit Court of Appeals.
Sixth Circuit overturns and remands district court’s dismissal of plaintiffs’ claim that district violated IDEA by expelling student before conducting a manifestation determination review, an evaluation for services under IDEA and an IEP team meeting.
Li v. Revere Local School Dist., 6th Cir. No. 21-3422 (May 8, 2023).
https://law.justia.com/cases/federal/appellate-courts/ca6/21-3422/21-3422-2023-05-08.html
T.L. was an eighth-grade student at Revere Middle School in the Revere Local (Summit) School District. In February 2016, a fellow middle school student reported to the police that he overheard T.L. making statements about a school shooting and saying his parents owned an assault rifle. When school officials and police spoke to T.L. at school the next day, he said he suffered from depression and suicidal thoughts due to frequent bullying. He made additional threatening remarks about a school shooting. School officials took T.L. to a children's hospital and notified his parents, David and Cindy Li, of the situation.
School officials held a meeting with T.L. and his parents on March 1, 2016. At the meeting, T.L. explained that he had been bullied daily for approximately a month, though he conceded that he never reported any bullying to the district or his parents. At the end of the meeting, school officials gave T.L.’s parents a notice suspending T.L. from March 1 through March 15, 2016.
At an expulsion hearing on March 14, T.L.’s parents requested that T.L. be evaluated for special education services, rather than be expelled. T.L. was expelled for 80 days on March 15. T.L.’s parents appealed the expulsion to the board of education, which upheld the expulsion but modified the decision so that T.L. could return to school for the 2016-17 school year. T.L.’s parents appealed the board’s decision to the court of common pleas, which affirmed it, and then to the court of appeals, which dismissed the appeal as untimely.
T.L. was evaluated for special education services and identified as a student with an emotional disturbance. At an individualized education program (IEP) meeting, the parents said they did not want T.L. to attend high school in the district. However, the district agreed to provide transportation and counseling for T.L. for the 2016-17 school year.
In March 2018, the Lis filed a due process complaint alleging that the district violated state and federal law by denying their request to hold a manifestation determination review (MDR), an evaluation for services under the Individuals with Disabilities Education Act (IDEA), and an IEP meeting before expelling T.L. After a hearing in January 2019, an independent hearing officer (IHO) determined that T.L. was not entitled to an MDR before his expulsion because he was not identified as a student with a disability at that time. Further, the IHO concluded that it was only after the event in February 2016 that the district had a duty to evaluate whether T.L. had a disability. The IHO also concluded that none of the district’s actions contested in the due process complaint arose to the level of denying T.L. a free appropriate public education (FAPE).
The Lis appealed and requested a hearing by a state level review officer (SLRO). The SLRO affirmed the IHO's decision on this first administrative complaint. Between the decision of the IHO and the decision of the SLRO, the Lis filed a second, separate due process complaint focusing on the district’s conduct after expelling T.L.
T.L.'s parents initiated the action before the federal court to challenge the outcome of the first administrative complaint. Their federal complaint alleged five claims: (1) a Section 1983 claim asserting violations of T.L.'s rights under the due process and equal protection clauses, IDEA, Section 504 of the Rehabilitation Act (Sec. 504), the Americans with Disabilities Act (ADA) and Ohio law; (2) an IDEA claim against the district and the board; (3) a Sec. 504 and ADA claim against the district and the board; (4) a claim for gross negligence against all defendants; and (5) a claim for intentional spoliation of evidence against all defendants.
On May 14, 2020, the defendants moved to dismiss the Lis’ complaint. They argued that: (1) all the Lis’ claims were barred by res judicata; (2) the IDEA claim was not administratively exhausted; and (3) the Section 504 and ADA claims were not administratively exhausted or adequately pled, since the Lis failed to allege bad faith or gross misjudgment. On March 31, 2021, the district court granted defendants' motion and dismissed the complaint in its entirety.
In this decision, the circuit court considered the Lis’ argument that the district court had misapplied res judicata in its dismissal of the IDEA claim (Count 2) and the Sec. 504 and ADA claims (Count 3) against the district and the board. The court concluded that, because the district court dismissed these counts for failure to exhaust administrative remedies or failure to plead plausible facts giving rise to an inference of discrimination, there was no misapplication of res judicata.
The Lis also challenged the district court's dismissal of the two counts for failure to exhaust administrative remedies. The Lis specifically addressed the pre-expulsion claim in their first due process complaint before the SLRO, alleging that, despite the parents’ proper request, the defendants "willfully violated the Expulsion Policy and the IDEA by refusing to hold the IEP Team Meeting or provide an MDR to T.L. prior to his expulsion."
The court agreed with the Lis that the pre-expulsion claim had been fully litigated through the Ohio Department of Education process and should have been considered administratively exhausted.
In its decision that the Lis had not exhausted their administrative remedies, the district court relied on the fact that the pre-expulsion claim in the first due process matter was inextricably intertwined with the claims in the second, pending due process matter. The circuit court rejected this argument and concluded that the district’s failure to conduct an MDR, IEP evaluation and IEP team meeting in March 2016 — prior to expulsion — was not inextricably intertwined with its purported failure to provide a legally sufficient IEP after expulsion. “Based on the distinct temporal separation between the Pre-Expulsion Claim raised in the first administrative complaint and all other claims raised in the second administrative complaint, the Pre-Expulsion Claim properly stands alone and should not have been dismissed as inextricably intertwined with the Lis' unexhausted claims.”
The court also held that, because the pre-expulsion claim was temporally distinct from the remaining, unexhausted claims, there is no guarantee that resolving the claims in the Lis' second administrative complaint — focused on T.L.'s special education after he left the district’s middle school — will provide any relief for their pre-expulsion claim. The court reversed the district court's order on the pre-expulsion claims. However, it concluded that the district court correctly dismissed all of the Lis’ remaining claims in Counts 2 as unexhausted because they were the subject of the Lis’ second pending due process complaint.
The Lis also argued that the district court erred in dismissing Count 3 — the ADA and Sec. 504 discrimination claims — for failure to state a claim. Specifically, they argued that the district’s refusal to conduct an MDR and IEP team meeting before expelling T.L., and the fact that school personnel failed to take any action to prevent the bullying T.L. was experiencing, despite observing significant, adverse changes in T.L.’s appearance, mood and behavior because of it, constituted bad faith or gross misjudgment.
The court agreed with the district court that the Lis failed, in their Count 3 claims, to plead plausible facts that gave rise to an inference that T.L. was subject to discrimination “by reason” of his disability. The circuit court distinguished Perez v. Sturgis Public Schools, saying that it was not clear from the Lis’ complaint whether they were seeking a remedy that was not available under IDEA. Therefore, the claims in Count 3 were subject to IDEA’s exhaustion requirement. The court also concluded that the Lis failed to explain how the district’s failure to timely identify T.L. rose to the level of bad faith or gross misjudgment.
Ohio court of appeals holds that board of county commissioners had the ability to establish a meeting notice rule on behalf of its investment advisory committee.
Ames v. Geauga Cty. Invest. Advisory Commt., 2023-Ohio-2252.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2023/2023-Ohio-2252.pdf
The Geauga County Investment Advisory Committee is a three-member committee composed of two members of the Geauga County Board of Commissioners and the county treasurer. In January 2022, Brian Ames filed a complaint against the committee, claiming that the committee failed to establish a rule compliant with RC 121.22(F), which requires public bodies to establish a rule by which any person may determine the time and place of regular and special meetings.
The trial court held that the board of county commissioners had adopted a meeting notice rule and that the committee had met its burden to establish the existence of a public notice rule that complied with RC 121.22(F).
On appeal, the plaintiff alleged that the board of county commissioners could not establish a rule compliant with RC 121.22(F) on behalf of the committee. The board maintained that the committee is a “committee or subcommittee” of the board pursuant to RC 121.22(B)(1)(b) and therefore had the ability to establish a rule compliant with RC 121.22(F) on behalf of the committee.
The court held that the statutory framework establishing county investment advisory committees supported the board’s position. The committee is a county committee with a majority of its members being county commissioners. As a result, the committee meetings constituted public meetings of the board. “In the regular course,” the court said, “any given Committee meeting was also a meeting of the Board and, having two-thirds of its members originate from the Board, was logically subordinate to the meeting rules the Board established.” As a result, the court held that the trial court did not err in denying the plaintiff’s motion for summary judgment and in granting the board’s motion for summary judgment.
Eighth district court of appeals upholds SERB’s exclusive jurisdiction over guidance counselor’s employment claims against the board related to improper termination and dispute over wages.
Falconer v. Warrensville Hts. City School Dist. Bd. of Edn., 2023-Ohio-2068.
Plaintiff Christopher Falconer was employed by Warrensville Heights City School District under a one-year limited contract as a guidance counselor and was a member of the Warrensville Education Association (WEA) labor union. At the time of his hiring, Falconer had a five-year professional pupil services license. In 2017, his contract was renewed as a “limited teaching contract.” In July 2018, the district’s human resources director discovered that Falconer’s license had expired the previous month and subsequently informed him that he would need to renew his license before the first day of the school year. On July 23, 2018, Falconer’s contract was renewed, and the school year began on Aug. 10. As of this date, Falconer had still not renewed his license, so the district issued a letter terminating his employment as of Aug. 10. He was later informed that he could resign his position and then be eligible to reapply later, and Falconer did so. On Aug. 19, his license was renewed, backdated to July 1. The board accepted his resignation on Aug. 27, as Falconer did not rescind it.
Falconer filed an unfair labor practice (ULP) charge against WEA, alleging that it failed to file a grievance over his termination and a grievance over a dispute about payment for work he completed over the summer. He also filed suit in the court of common pleas against the board of education, alleging a breach of an employment contract, promissory estoppel and unjust enrichment. He did not file a grievance against the board under the collective bargaining agreement (CBA). The board moved to dismiss the claims based on a lack of subject matter jurisdiction, arguing that the claims were subject to binding arbitration under RC 4117 and were under the exclusive jurisdiction of the State Employment Relations Board (SERB). The trial court granted the board’s motion, and Falconer appealed.
The appeals court affirmed the trial court’s judgment, finding that Falconer’s claims were subject to SERB’s exclusive jurisdiction. The court noted that RC 4117 bestows exclusive jurisdiction upon SERB for claims that arise out of the employment relationship between public employers and their employees and that when the CBA specifies binding arbitration as the exclusive form of dispute resolution, the trial court may only confirm, modify or vacate that award. Falconer argued that his claims fell outside the scope of the CBA and were instead derived from his own “limited teacher contract.” The court rejected this, noting that this contract arose from the CBA and that his assertions that he was terminated without cause and did not receive compensation concern the terms and conditions of employment and therefore implicate the CBA. Because Falconer did not file a grievance against the board and participate in the binding arbitration process, the trial court had no jurisdiction, so the trial court’s dismissal was upheld.
Appeals court affirms trial court’s summary judgment for construction company and other contractor parties on the basis that the statute of repose bars school district’s breach of contract claims against them.
Board of Edn. of Martins Ferry City School Dist. V. Colaianni Constr. Co., 2023-Ohio-2285.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2023/2023-Ohio-2285.pdf
The Martins Ferry City School District Board of Education hired Colaianni Construction, MKC Architects and other contractors to construct two new buildings using funds provided by the Ohio Facilities Construction Commission’s (OFCC) Classroom Facilities Assistance Program (CFAP). The board hired MKC as its design professional on the project. Colaianni was contracted in 2006 to act as the general contractor for the school projects. Contracts for other services, including bonding and roofing, followed. The design contract included a reference to the Ohio School Design Manual (OSDM) published by OFCC. The other contracts did not refer to the OSDM.
The buildings opened to the public in January 2008, and the board conceded that the project was substantially completed in 2008. Water leaks, which caused damage to the interior of the buildings, began in one of the buildings almost immediately and in the second building shortly thereafter. The district repeatedly contacted the roofing contractors to perform repairs, which did not address the underlying deficiencies with the roofing systems.
The board and OFCC executed a certificate of completion on the project agreement in May 2016, which stated that the board assumed sole responsibility for property ownership and facilities management, including the responsibility to enforce any warranties and guarantees associated with the project. In May 2018, a consulting company performed a detailed analysis of the roofs and concluded that the original roofing contractors used improper materials. This was the cause of the premature failure of the roofs as opposed to a defect in the materials used by the contractors. The board entered into contracts with a new roofing contractor to repair the buildings’ roofs. One contract was for $4.7 million and the other was for $4.2 million.
The board brought its actions — one for each building — on April 5, 2019, and amended complaints on Aug. 2, 2019. It alleged claims for breach of contract and breach of express warranty against the general contractor, the roofers and the architect (contractor parties), and claims related to the surety bond. In December 2019, after the Supreme Court of Ohio reached its decision in New Riegel Local School Dist. Bd. Of Edn. v. Buehrer Group, 2019-Ohio-2851 (SLS 2019-3), applying the statute of repose to breach of contract claims, the trial court combined the discovery processes of the two cases and limited discovery and fact finding to exceptions and defenses to the statute of repose. The board first raised fraud exceptions to the statute of repose in amended complaints filed on Jan. 13, 2020, in response to a motion to dismiss filed by one of the contractor parties.
In May 2020, the contractor parties filed various motions for summary judgment or motions to dismiss in both cases. The trial court granted summary judgment in both, concluding that the statute of repose barred all claims against the contractor parties and their sureties. The statute of repose, RC 2305.131, provides that no cause of action to recover damages for an injury to real property, that arises out of a defective and unsafe condition of an improvement to real property, can accrue against a person who performed services for the improvement or design, planning, supervision or construction of the improvement, later than 10 years from the date of substantial completion of the improvement.
The board appealed. Among its other arguments, the board contended that its claims accrued prior to the expiration of the statute of repose and, for that reason, the date the action was filed need only fall within the applicable statute of limitations. The court relied on the New Riegel decision and found that the argument was without merit. The board also argued that the statute of repose was unconstitutional as applied to the MKC contract because the statute was enacted after the contract was executed. The court analyzed this argument under the U.S. and Ohio constitutional prohibitions against the passage of laws that impair the obligation of contracts. The court concluded that the application of the statute of repose to the MKC contract was not unconstitutional because it did not constitute a substantial impairment of the board’s contract with MKC.
The board argued that the fraud exception to the statute of repose applied because the contractor parties breached the contracts and misrepresented, in payment requests and certificates, their compliance with the contract documents. The court noted six elements a party must prove to establish a cause for fraudulent misrepresentation: (1) a representation or, where a duty to disclose exists, concealment of a fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) a resulting injury proximately caused by the reliance.
The contractor parties challenged the fraud claims, noting that they were not asserted with particularity, as required by Civ.R. 9(B), in the board’s second amended complaint. The board argued that the second amended complaint was filed before the New Riegel decision and the board was not required to raise allegations of fraud within its breach of contract claims in order to prohibit the contractor parties from invoking the statute of repose. “In other words, [the board] asserts that it need only raise allegations of fraud after [the contractor parties] invocation of the statute of repose in their respective motions to dismiss/for summary judgment.”
The court rejected this argument. It concluded that the fraud exception to the statute of repose did not apply in this matter because “only substantive causes of action for fraud plead with particularity render the affirmative defense of the statute of repose unavailable to a defendant.”
Court of appeals allows board of education to appeal property valuation complaint filed prior to HB 126’s effective date to BTA.
Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 2023-Ohio-2020.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2023/2023-Ohio-2020.pdf
In February 2022, two Union County residents filed a taxpayer complaint for the 2021 tax year with the Union County Board of Revision. In that complaint, the taxpayers sought an increase in valuation of certain real property in the Marysville EV School District. In May 2022, the Marysville EV School District Board of Education filed a counter-complaint with respect to the same real property and agreed that the valuation of the property should be increased by several million dollars.
In August 2022, the Union County Board of Revision (BOR) held a hearing and ruled that no change would be made in the valuation of the real property. In September 2022, the school board filed a notice of appeal with the Board of Tax Appeals (BTA). In December 2022, the owner of the property at issue, The Residence at Cooks Pointe LLC, filed a motion with the BTA seeking to dismiss the appeal filed by the school board.
The motion to dismiss was based upon a recent amendment to RC 5717.01 set forth in House Bill (HB) 126, which substantially restricted the right of a board of education to appeal to the BTA. Prior to HB 126, RC 5717.01 permitted a school board to appeal decisions of a county BOR to the BTA. After HB 126, in order to lawfully appeal a county BOR decision to the BTA, a school board must be a subdivision that owns or leases the property at issue in the original complaint. The issue in this case is whether HB 126, which took effect July 21, 2022, was applicable to the board’s appeal since the original complaint and counter-complaint were filed before July 21, 2022, but the appeal to the BTA stemming from those pre-July 21, 2022, complaints was filed after that date.
The BTA applied the language of HB 126 and held that because the school board did not own or lease the property at issue in the complaints, the board’s appeal was precluded by HB 126. The BTA ruled that the board’s statutory appeal right pursuant to RC 5717.01 “was extinguished as of the effective date” and was not available to pending appeals before BTA. The school board appealed.
On appeal, the court of appeals found the BTA’s ruling to be flawed. Specifically, the court of appeals found that the BTA misinterpreted the plain language of the statute and overlooked certain principles of statutory interpretation that impacted the applicability of the new RC 5717.01 to the school board’s appeal.
First, the court of appeals noted that the amended version of RC 5717.01 was written in the present tense and prohibit a board of education “that files” a complaint or counter-complaint from appealing. The court found that the legislature’s use of the present tense “files,” indicated their intention to apply the statute only prospectively. The court also noted that the present-tense phrasing was specifically tied to the filing of a complaint or counter-complaint, not to the filing of an appeal.
Second, the court of appeals noted that the HB 126 version of RC 5717.01 did not expressly mention retroactivity. The court reasoned that the General Assembly’s failure to include such language meant that the amended version of RC 5717.01 could only be applied prospectively.
As a result, the court held that the amended statute should only be applied prospectively to appeals stemming from complaints filed after the July 21, 2022, effective date, as opposed to prohibiting appeals from complaints that were filed prior to that date. The court of appeals reversed the decision of the BTA and remanded the case for further proceedings. This decision has been appealed to the Supreme Court of Ohio.
Appeals court upholds State Board of Education’s decision to permanently revoke teacher’s license for conduct unbecoming a teacher after his physical altercation with a student.
Prude v. Ohio State Bd. of Edn., 2023-Ohio-1672.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2023/2023-Ohio-1672.pdf
Armond Prude was issued a four-year resident educator adolescence-to-young adult teaching license in 2016. He began his teaching career at Warrensville Heights High School in the Warrensville Heights City School District. One of Prude’s duties was to supervise students during their lunch period. On Nov. 18, 2018, Prude was in the lunchroom performing this duty while eating his lunch. During this time, a student engaged in inappropriate and disruptive behavior directed toward Prude. As seen in a video of the lunchroom, Prude responded by chasing the student and pushing him against a support structure. After Prude returned to his seat, the student resumed the behavior toward Prude. Prude stood up and pushed the student four more times. After resuming his seat again, Prude stood, swiftly approached the student and pushed him into a floor-to-ceiling window, which shattered, causing lacerations to the student’s arm, hand and finger.
Following this incident, the district superintendent determined that he would make a recommendation to the board that Prude’s employment be terminated. Before he could make the recommendation, Prude resigned from his employment for personal reasons, effective Jan. 31, 2019.
On Jan. 24, 2020, the Ohio Department of Education (ODE) and superintendent of public instruction notified Prude of their intent to determine whether to limit, suspend, revoke or permanently revoke his four-year teaching license for engaging in conduct unbecoming of the teaching profession. The State Board of Education (State Board) issued two amended notices on Jan. 30 and March 17, 2020. Each notice stated that Prude’s actions on Nov. 17, 2018, constituted a violation of Ohio Revised Code (RC) 3319.31(B)(1) as conduct unbecoming a classroom teacher.
Prude requested a hearing before an independent hearing officer (IHO). An evidentiary hearing was held in October 2021. At the hearing, Prude stated that he removed the student from his personal space. Regarding the final action, Prude stated: “So I removed the student from my personal space, and his contact with the window — once he contacted the window, it broke.” Prude also stated that it was necessary to remove the student from his personal space because he was unsure what the student, whom he described as irate, was going to do. Prude also stated the student was using profanity and yelling insults and racial slurs at him.
Following the hearing, the IHO recommended that Prude’s license be revoked, that Prude be permanently ineligible for any license issued by the State Board, and that he not be permitted to hold any position in any school district in Ohio requiring a license issued by the State Board. The IHO listed three aggravating factors: (1) the nature and seriousness of Prude’s misconduct; (2) the fact that Prude’s testimony gave no clear picture of how he would handle a similar situation in the future and that his future conduct could negatively affect students; and (3) the fact that Prude resigned from his position in lieu of termination. The IHO also listed, as mitigating factors, Prude’s relative youth and time teaching, the fact that he had not been previously disciplined by the State Board or any other licensing entity and the fact that he had no previous record of educator misconduct and had good teaching evaluations during the time he taught in Warrensville.
On Feb. 16, 2022, the State Board permanently revoked Prude’s teaching license and ordered that he be permanently ineligible to apply for any license, permit or certificate issued by the State Board. Prude appealed the decision to the Cuyahoga County Court of Common Pleas. The court reversed the State Board’s decision and ordered it to reinstate Prude’s teaching credentials. It concluded that the State Board’s decision was not based upon reliable, probative and substantial evidence and, even if it was, the punishment was not in accordance with the law. The court concluded that teachers are called upon to make professional judgments every day and “the reasonable exercise of such professional judgment cannot constitute a violation of R.C. 3319.31(B) as conduct unbecoming a classroom teacher.” The State Board appealed.
The court of appeals stated that its role was limited to determining whether the trial court abused its discretion. The court began by stating that RC 3319.31(B)(1) permits the State Board to revoke a license that has been issued to any person for engaging in an immoral act, incompetence, negligence or conduct that is unbecoming to the person’s position. The court stated that there were a number of relevant factors to be considered in assessing whether a teacher engaged in conduct unbecoming of the profession including: (1) misconduct involving minor school children; (2) misconduct that negatively reflects upon the teaching profession; (3) failure to practice the teaching profession according to the highest ethical standards; (4) failure to maintain a professional relationship with all students; (5) engaging in a physical altercation with a student that is not for the purpose of ensuring the student’s health, safety and welfare; and (6) failing to provide appropriate supervision of students. The State Board argued that the trial court abused its discretion by completely disregarding the probative evidence of Prude’s misconduct, failing to properly consider the probative statements obtained from witnesses and ignoring other evidence presented by the State Board. It also argued the common pleas court failed to apply the principle of administrative deference and merely substituted its judgment for that of the State Board in determining that Prude’s conduct did not constitute conduct unbecoming an educator.
The appeals court concluded that the trial court abused its discretion in concluding that the State Board’s decision was not supported by reliable, probative and substantial evidence. It based its decision on the principle of administrative deference and agreed with the State Board’s argument that the trial court merely substituted its judgment for that of the State Board without a reasonable and factual basis to do so. The court stated: “In the absence of legally significant reasons for discrediting certain evidence, the trial court was not permitted to ignore undisputed facts or second guess the Board’s reasonable interpretation of the applicable statutes and administrative rules.”
The appeals court also concluded that the punishment imposed on Prude was in accordance with law. The court noted that the State Board adopted the IHO’s recommendation, expressly stating that it had considered all relevant factors under the administrative rules in rendering its decision. The trial court concluded that the punishment imposed on Prude was not in accordance with the law because the IHO did not consider his conduct and work activity. The appeals court stated that, contrary to the trial court’s conclusion, its review revealed that the IHO did contemplate Prude’s prior work performance and his lack of a disciplinary record in rendering his recommendation. Further, the appeals court concluded that the court had no authority to modify the sanction authorized by the State Board because it believed the sanction was too harsh.
U.S. Supreme Court issues unanimous ruling clarifying the “undue hardship” standard for religious discrimination claims arising under Title VII.
Groff v. DeJoy, 600 U.S. ___ (2023)
https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf
The U.S. Supreme Court issued a ruling that marks a notable shift in how courts will analyze religious discrimination claims, requiring employers to show that religious accommodations would constitute a “substantial burden in the overall context of [their] business” in order to deny them. Previously, some courts had held that employers need only show that an accommodation proposed by an employee would cause the employer to bear more than a de minimis cost in order to be justified in denying the accommodation. The new standard is significantly more favorable to employees.
This case involved an employee who filed suit against the U.S. Postal Service (USPS). The petitioner Gerald Groff, an Evangelical Christian, claimed that USPS failed to accommodate his religious beliefs by requiring him to work on Sundays. While mail carriers with USPS are generally not required to work on Sundays, the USPS in his area had entered into an agreement with Amazon, which required certain carriers to work on Sundays. Groff had initially transferred to another location to avoid the Sunday work requirement, but his new duty station eventually began to require Sunday work. Groff refused to work on Sundays when it was assigned to him, and he received progressive discipline for his failure to work. Groff filed suit under Title VII of the Civil Rights Act of 1964, alleging a failure to accommodate his religious beliefs. USPS countered that excusing the employee from work on Sundays constituted an undue hardship on its business.
Title VII makes it unlawful for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s ... religion.” The Equal Employment Opportunity Commission (EEOC) later issued regulations clarifying that “[e]mployers are required to provide reasonable accommodations to the religious needs of employees as long as the accommodations do not create an ”undue hardship on the conduct of the employer’s business.” Historically, lower courts and EEOC have relied on language in the U.S. Supreme Court case of Trans World Airlines v. Hardison, 432 U.S. 63 (1977), which indicated that employers need only show that a requested accommodation would cause the employer “to bear more than a de minimis cost” in order to deny the accommodation and prevail.
In Groff, the court clarified that this language was not meant to constitute the court’s authoritative analysis on the subject and stated definitively that the “more than a de minimis cost” standard was not the applicable test. The court conducted an examination of the Hardison case and rejected the fact that it stood for the proposition that the “more than a de minimis cost” standard was to control these analyses moving forward. Instead, the court conducted a highly textual analysis of the term “undue hardship” and found that “‘undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business” and that employer would need to show that the accommodation would cause “substantial increased costs,” taking into account all relevant factors. The court also clarified that employers need to show that requested accommodations would negatively impact the conduct of their business, not simply negatively affect the individual’s coworkers. Turning to the facts of the case, the court ultimately found that USPS had failed to demonstrate that Groff’s request for this accommodation failed to meet the “substantial burden” test and remanded the case to the lower courts for analysis under the clarified test.