In this issue: Administrator – Reduction-In-Force • Collective Bargaining • Discrimination • First Amendment • Individuals With Disabilities • Licensure • Public Records • School Buildings • Tax – Valuation/Real Property • Termination • Title VII • Transgender Students
ADMINISTRATOR – REDUCTION-IN-FORCE
Appeals court grants summary judgment to board on suspension of former administrators, holding that the board’s policy on suspension of administrators was valid and its actions were not pretextual.
State ex rel. Ruble v. Bd. of Edn. of Switzerland of Ohio Local School Dist., 2024-Ohio-1542.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2024/2024-Ohio-1542.pdf
In July 2021, the superintendent of the Switzerland of Ohio Local School District recommended to the board of education that the employment contracts of four administrators hired in 2019 and 2020 be suspended under the board’s policy adopted pursuant to Ohio Revised Code (RC) 3319.171 due to reorganization and consolidation of their respective administrative functions and duties. After providing the required written notice to the four administrators, the board voted to accept the superintendent’s recommendation and suspend the four administrators’ contracts to “address the financial condition of the school district.” The motion passed by a 4-to-1 vote.
The four administrators filed a petition requesting a writ of mandamus. They argued that the board’s policy did not comply with RC 3319.171. They also argued that the two reasons offered by the board in support of the suspensions were pretextual. The four administrators later filed a motion to amend their complaint to add a claim for right of restoration. The board denied the allegations, and both parties filed motions for summary judgment.
The court discussed the distinction in the laws governing termination of teacher contracts and termination of administrator contracts, including the lack of continuing contract status for administrators. It noted that, if a board had adopted the policy described in RC 3319.171, the policy must: (1) provide at least one reason for which the board may consider suspending an administrator’s contract; (2) contain a procedure for determining the order of suspension; (3) have provisions providing a right of restoration; and (4) be developed with input from the pool of administrators employed by the board.
In this instance, the board adopted the policy described in RC 3319.171. The four administrators argued the policy was invalid because it contained no suspension order procedure or right of restoration and was enacted with no administrator input. The board argued that the policy was valid because it did contain the first two requirements and that the four administrators had not raised the claim about administrator input until their motion for summary judgment.
The court ruled the suspension order procedure was sufficient because the statute did not require a detailed list of the criteria for suspensions. It was sufficient that the policy controlled the board’s discretion in carrying out suspension of contracts based on the best interest of the school district. According to the court, this is a legitimate and justifiable criterion that comports with the purpose of the statute, allowing the board the flexibility to adjust its administrative staff according to the district’s needs.
Regarding restoration rights, the court again concluded that the board’s policy complied with RC 3319.171. It noted that the policy emphasized that the primary factor in filling administrative policies was the best interest of the school district. It stated that, while the law requires that a right of restoration be provided, “it does not preclude the Board from considering the overall needs and interests of the district when making staffing decisions.”
The court declined to consider the four administrators’ claim that the policy was adopted without administrator input because that claim was not properly raised or pled.
The four administrators also claimed that the board added a concern for the district’s finances when it voted to suspend their contracts, which had not been raised as a reason for the suspension when the superintendent made the initial recommendation, raising the issue of whether the reason was pretextual. The court concluded that this argument was without merit. Adding the financial concern did not reflect inconsistency or pretext: “Adding another valid reason at the meeting where the recommendation was to be voted on does not show that the Board’s reasons were not genuine. Decisions in complex organizations like school districts can evolve due to new information, changing circumstances, or a deeper understanding of the situation.” The court also rejected the four administrators’ claim that, because the district’s financial condition was not in an immediate state of peril, it could not be used as a basis for their suspension. The four administrators relied on case law interpreting RC 3319.17, reductions in force for teachers. The court stated that administrator contracts, unlike those of tenured teachers, do not enjoy the same statutory protections.
Finally, the court rejected individual administrators’ claims that they had a right to restoration to various positions.
Appeals court finds that arbitrator properly acted within her authority when she ordered a township to reinstate an employee after the township failed to conduct a pre-disciplinary hearing outlined in the CBA, despite the township’s argument that the employee “abandoned” his position.
Colerain Twp. v. AFSCME Ohio Council 8, AFL-CIO, Local 3553, 2024-Ohio-1352.
https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2024/2024-Ohio-1352.pdf
In February 2021, a maintenance worker employed by Colerain Township went on Family Medical Leave Act (FMLA) leave due to back injuries that significantly curtailed his ability to work. The employee was a member of the labor union AFSCME Ohio Council 8, AFL-CIO, Local 3553 (union). After the employee went on leave, the employer and employee stayed in contact, and the employer emphasized to the employee the significance of the work restrictions and the importance of providing the employer with a date he could return to work with no restrictions. The employee’s physician provided documentation enabling the employee to return to work on light duty as of April 8. The township continued to stress the importance of the employee’s being able to perform his full duties and sent him a letter stating that his FMLA leave was about to end and that failure to produce documentation releasing him for full duties by May 13 would constitute absence without leave and would result in discipline up to possible termination. The employee continued to submit documentation but did not produce documentation clearing him for full duty. On May 14, the township sent a letter to the employee stating that the failure to produce documentation clearing him for return to full duties resulted in their deeming him to have abandoned his position.
On May 19, the union filed a grievance against the township on the employee’s behalf requesting a pre-disciplinary hearing pursuant to the collective bargaining agreement (CBA) in place. Article 13, section 4 of the CBA provided, “Whenever the Employer determines that an employee will be subject to discipline of suspension, reduction or termination, a disciplinary hearing will be scheduled to give the employee an opportunity to offer an explanation of the alleged misconduct.” It went on to say that such discipline “may be appealed through the Grievance procedure,” a five-step process also described in the CBA. The union’s grievance alleged a violation in the denial of a disciplinary hearing.
The township responded that the employee was not entitled to a hearing because he was not disciplined but rather abandoned the position. Therefore, the township would not participate in any grievance process. The matter proceeded to arbitration, and the arbitrator ultimately ruled in favor of the employee and the union, finding that the township violated the CBA by not conducting the pre-disciplinary hearing. The arbitrator ordered the township to reinstate the employee to his position and to make him whole. The township initiated proceedings in the court of common pleas, making a motion to vacate the arbitration award. The trial court ultimately agreed with the township and found that the arbitrator had exceeded the scope of the CBA and that the employee was not entitled to the relief granted.
The appellate court reversed the trial court and ruled that the arbitrator did not exceed her authority in issuing the relief to the employee. The court noted that the CBA itself contained a provision stating that if the employer failed to respond to a grievance, the grievance would be deemed settled. The CBA also grants arbitrators the authority to resolve disputes “arising out of grievances as to the interpretation, violations and the applications of the provisions of the CBA.” Thus, the actual question of whether the employee was “disciplined” and therefore entitled to a pre-disciplinary hearing was not before the court — it was a question of the arbitrator’s authority to make the determination.
The court then turned to the question of whether the award issued by the arbitrator was within her authority. Looking at the relief requested in the initial grievance, the union/employee requested that the employee be given a pre-disciplinary hearing. Per the court’s reasoning, the grant of a “pre-disciplinary hearing” logically comprised the employee’s being reinstated prior to the hearing. The court read the “make [the employee] whole language as a directive from the arbitrator to place the employee in the position he would have been had the township properly followed the proper procedures.” Arbitrators generally have broad authority to issue awards in this context, and there was a proper nexus between the award and the CBA. Thus, the trial court’s decision was overturned.
Court of appeals affirms trial court’s grant of summary judgment against a former school administrator, finding that she failed to produce adequate evidence of race or sex discrimination.
Kelley v. Dayton Pub. School Bd. of Edn., 2024-Ohio-979.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2024/2024-Ohio-979.pdf
In 2017, Venita Kelley was hired as director of strategic communication and community relations at Dayton Public Schools (DPS). She is an African American woman and was involved in multiple diversity and equity programs throughout the district. One of her duties was overseeing the district’s Males of Color Program. Five days after Kelley’s hire, DPS hired Marsha Bonhart, who is also an African American woman, as director of communications and media, a closely related position within the district designed to work as a counterpart to Kelley’s position. Both were in the superintendent’s executive cabinet. After some change in district leadership, Kelley testified that she began to be excluded from some cabinet meetings. She also received notice that she would no longer oversee the Males of Color Program, as a male administrator had been appointed to lead it. The district also alleged that Kelley failed to timely produce a strategic plan draft and used a district credit card without following the proper approval protocols.
In March 2018, Kelley had her final job performance evaluation and was informed that her contract was not being recommended for renewal. She was placed on administrative leave in April 2018. The board later voted to nonrenew her contract. Most of Kelley’s job responsibilities were taken over by Bonhart. In December 2019, Kelley brought suit for both race and sex discrimination claims against DPS, the superintendent and individual board members after her contract was not renewed. The trial court granted summary judgment in favor of DPS. Kelley appealed the judgment, and the court of appeals affirmed the lower court.
The court noted that summary judgment is proper when there is no genuine dispute of fact; the moving party is entitled to judgment as a matter of law; and reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, could only conclude adversely to that party. An employment discrimination claim under Ohio Revised Code (RC) 4112.02 may be proven either by direct or circumstantial (indirect) evidence. Direct evidence of discrimination, which is rare, is evidence, that, if believed, requires the conclusion that unlawful discrimination is at least a motivating factor of the adverse action. Absent direct evidence, an employee must proceed under the burden-shifting indirect evidence approach where the employee must prove by preponderance of the evidence a prima facie case of discrimination. This consists of the employee establishing they: (1) are a member of a protected class; (2) were subject to an adverse employment decision; (3) were qualified for the position; and (4) were replaced by someone outside the protected class or were treated differently from similarly situated nonprotected classes. If the employee succeeds, then the burden shifts to the employer to articulate a nondiscriminatory reason for the adverse employment decision.
The court of appeals deemed Kelley to lack both direct and indirect evidence of race discrimination. Kelley attempted to proffer as direct evidence that the superintendent took adverse actions against her because her position involved diversity and equity matters but pointed to no evidence that the superintendent’s personnel decisions regarding Kelley were due even in part to her race. As to the fourth prong, the court found that Kelley failed to meet this requirement of the prima facie case, as Kelley’s job responsibilities were assumed by Bonhart, another African American woman.
Kelley was also deemed to lack any evidence of sex discrimination, direct or indirect. As with the race discrimination claim, assuming that Kelley was replaced after her contract was not renewed, the communications department was subsequently led by a woman. Kelley pointed to no similarly situated male who was treated differently from her, foreclosing the possibility of indirect evidence. Notably, Kelley attempted to point as direct evidence to the alleged comment of the DPS board president that Kelley should be removed from the district’s Males of Color Program because a woman should not lead a male department. Kelley was ultimately removed from the leadership position a year prior to her contract nonrenewal. However, the appeals court found that her removal from Males of Color was not an adverse employment decision, failing the second prong. Kelley’s removal from Males of Color did not affect her pay or benefits, nor did it significantly diminish her job responsibilities. The actual adverse employment decision was her contract nonrenewal, for which Kelley advanced no sex discrimination evidence.
District court dismisses parents’ claims challenging district policies on informing parents about their children’s mental health status for lack of standing because they do not allege any injury in fact.
Kaltenbach v. Hilliard City Schools, S.D.Ohio No. 2:23-cv-187 (Apr. 19, 2024).
https://www.courtlistener.com/docket/66734174/43/kaltenbach-v-hilliard-city-schools/
This case arises from policies of the Hilliard City School District related to LGBTQ+ students and parental notification. The policies concerned when the district might withhold certain information from parents of students regarding the student’s gender identity or sexual orientation. Parents of district students sued the district asking for declaratory relief blocking implementation of the policies. The parents alleged that the policies infringe on their rights of freedom of conscience, familial integrity, freedom of speech and due process. According to the parents, the policies allowed the district, if it believed that a parent held anti-LGBTQ+ views, to withhold information from them if their children show any sign of an LGBTQ+ identity. The parents alleged that, while the district’s default was to tell parents everything important about their children, there was a “health and safety” exception that allowed the district to withhold important information about a child from any parent that was labeled an “unsafe” person because they did not support LGBTQ+ youth.
The parents also sued the district, asking for injunctive relief in connection with badges worn by district staff. The badges had a QR code on the back that, if scanned, provided resources and materials related to LGBTQ+ issues. The parents alleged that these materials contained sexually explicit material.
The board defendants asked the court to dismiss some of the claims against them for lack of standing. Article III of the U.S. Constitution provides that federal jurisdiction is limited to cases and controversies, of which standing is an essential element. Standing has three elements: (1) an injury in fact, which means an invasion of a legally protected interest that is concrete and particularized and actual or imminent; (2) the injury must be “fairly traceable to the challenged action of the defendant”; and (3) the injury is likely to be redressed by a favorable decision of the federal court. The plaintiffs have the burden of demonstrating standing.
In this instance, the court concluded that the plaintiffs had not established the first requirement of an injury in fact because they had not demonstrated that they had sustained or were in immediate danger of sustaining some direct injury as the result of the challenged official conduct. When a plaintiff is asserting the risk of a future harm, the plaintiff must show that the threat of injury is both real and imminent, not conjectural or hypothetical.
The parents in the matter before the court had not demonstrated that their children have told or may tell the school that they are or may be LGBTQ+ or that they show any signs of mental illness. Because the parents had not plausibly alleged that their children have or will report such issues to the district, the parents have not plausibly alleged that they will suffer any injury as a result of what the district might do in response to such a report. Further, the parents have not alleged that they have or are perceived to have anti-LGBTQ+ views, have not plausibly alleged that they have or will be labeled unsafe or that they will suffer any injury stemming from how the district interacts with parents it believes are unsafe. For these reasons, the court dismissed their claims for declaratory relief for lack of standing.
The court dismissed the parents’ claim for injunctive relief for not plausibly alleging any risk that their children will be exposed to sexually explicit materials because of district employees wearing a badge. The court noted that the parents did not allege whether anyone at their children’s schools wore the badge or whether their children would scan the QR code on the back of a badge if they saw one.
Finally, one of the parents alleged specific claims regarding how the district handled her child’s mental health issues. The district did not seek to dismiss those claims.
U.S. Supreme Court holds public officials only engage in state action on their social media page if they possess actual authority to speak on the state’s behalf and purport to exercise that authority when speaking in a social media post.
Lindke v. Freed, 601 U.S. 187 (2024).
https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf
In 2014, James Freed updated his public Facebook page to reflect that he was appointed as the city manager of Port Huron, Michigan, describing himself on the page as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” The page was operated by Freed himself, and he used to page to prolifically and primarily post about his personal life. Sometimes he would also post information related to his job, including highlighting communications with other city officials and soliciting feedback from the public. This included responding to comments on his posts left by city residents. Freed deleted comments he considered “derogatory” or “stupid.”
During the COVID-19 pandemic, Freed would post about the pandemic on his page, some posts being personal and some containing information related to his public position. Kevin Lindke, a citizen and social media user, commented on several of Freed’s posts, voicing his displeasure with the city’s approach to the pandemic. This led to Freed initially deleting Lindke’s comments and ultimately blocking Lindke from commenting on Freed’s Facebook page. In response, Lindke brought action under Section (Sec.) 1983 alleging that Freed violated his First Amendment rights by deleting his comments and eventually blocking him from the Facebook page that Freed operated. The District Court of Eastern Michigan granted summary judgment in favor of Freed. The Sixth Circuit Court of Appeals affirmed (see SLS 2023-2). Lindke appealed to the U.S. Supreme Court.
Sec. 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives someone of a federal constitutional or statutory right (emphasis added). This provision protects against acts attributable to the state, not a private person. The court began its analysis by stating that the law’s “under color of” text made clear that it is a provision designed as a protection against acts attributable to a state, not those of a private person. If Freed acted in his private capacity when he blocked Lindke and deleted his comments, the court acknowledged that he “did not violate Lindke’s First Amendment rights — instead, he exercised his own.”
The court acknowledged that sometimes “the line between private conduct and state action is difficult to draw.” To provide clarity about where the distinction lies, the court created a new test to be applied by the lower court on remand. Under the court’s new test, a public official’s social media activity constitutes state action under Sec. 1983 only if the official: (1) possessed actual authority to speak on the state’s behalf; and (2) purported to exercise that authority when they spoke on social media. The power to speak on behalf of the state requires attention to relevant statute, ordinance, regulation, custom or usage. So, the first prong would be met if Freed had actual authority rooted in written law or longstanding custom to speak on behalf of the state on the matters in his posts. For the second prong, categorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking of which the post’s content and function are the most important considerations. The court acknowledged that if Freed’s account had carried a label — e.g., “this is the personal page of James R. Freed” — he would be entitled to a heavy presumption that all his posts were personal.
The Supreme Court remanded the case for further proceedings under this test.
Seventh Circuit affirms district court’s ruling that parents lack standing to bring suit to enjoin enforcement of a “Gender Support Plan” with there being no injury sufficiently imminent.
Parents Protecting Our Children, UA v. Eau Claire Area School Dist., 95 F.4th 501 (7th Cir.2024).
https://law.justia.com/cases/federal/appellate-courts/ca7/23-1534/23-1534-2024-03-07.html
In 2021, the Eau Claire School District in Wisconsin implemented the Administrative Guidance for Gender Identity Support. The district’s aim was to “foster inclusive and welcoming environments that are free from discrimination, harassment, and bullying regardless of sex, sexual orientation, gender identity or gender expression.” The guidelines were provided “to address the needs of transgender, nonbinary, and/or gender non-conforming students.” The process the district envisioned allowed both students and parents to contact school officials with questions, concerns or requests on matters of a student’s gender identity. The guidance acknowledged that due to sensitivity over the matter and possible lack of acceptance at home, school personnel should speak with the student before discussing that student’s gender identity with parents.
The next year, the district prepared a template Gender Support Plan, a document for schools to complete in connection with implementing the administrative guidance for a particular student. While it was created with the intent of school staff, family and the student working together, like the administrative guidance, the plan recognizes circumstances where parents are not involved in creating the plan. In such circumstances, however, the document will still be released to the parents when they request it as it is not intended to be a privileged document between the student and the school district.
Parents Protecting Our Children (PPOC) is an unincorporated association of parents with children in the Eau Claire School District. The group brought suit against the district, seeking declaratory and injunctive relief on claims that both the administrative guidance and Gender Support Plan violate the parents’ due process rights under the 14th Amendment and the Free Exercise Clause of the First Amendment. The parents acknowledge the lawsuit was not brought in response to the experience of any parent with the implementation of the administrative guidance. Rather, the suit was brought as a facial pre-enforcement challenge to invalidate the entirety of the policy. PPOC was also clear that what motivated the suit were sincerely held, religiously rooted concerns about how the schools may implement the guidance. They worried they would be left in the dark if their child explored their gender identity or began to socially transition at school.
The district court found the association failed to allege an injury or risk of injury sufficient to establish standing under Article III of the U.S. Constitution. The Seventh Circuit affirmed on appeal. Standing doctrine implements Article III’s case or controversy requirement. It does so by requiring the party invoking the jurisdiction of a federal court to allege it has suffered an invasion of a concrete and particularized legally protected interest. Further, the invasion cannot be conjectural or hypothetical, and while a future injury may be sufficiently imminent to establish standing, the future injury must also be concrete instead of conjecture about speculative or possible harm. PPOC fails to meet the threshold for standing with no injury having occurred or certainly impending, particularly indicated by the fact the parents failed to allege either type of injury in the complaint. No evidence exists of a child of one of the parents questioning their gender identity or otherwise seeking support under the school’s guidance. Thus, the group lacked standing, and their suit was dismissed.
Eight Circuit Court of Appeals affirms lower court ruling that by not providing evening instruction to a student who experienced morning seizures, the school district denied her a free appropriate public education under IDEA.
Osseo Area Schools, Indep. School Dist. No. 279 v. A.J.T. by & through A.T., 96 F.4th 1062 (8th Cir.2024).
https://law.justia.com/cases/federal/appellate-courts/ca7/23-1534/23-1534-2024-03-07.html
Middle school student A.J.T. has a rare form of epilepsy, causing seizures so frequent in the morning that she cannot attend school before noon. She also requires assistance with everyday tasks like walking and toileting. Because of her educational needs, A.J.T. received services pursuant to an individualized education program (IEP) under the Individuals with Disabilities Education Act (IDEA). Before moving to the Osseo Area Independent School District in Minnesota, A.J.T. attended a school district in Kentucky. Her IEP at that district included evening instruction time at home. When A.J.T. and her family moved to Osseo, the district repeatedly denied her parents’ requests for evening instruction, asserting that it had no obligation to educate her outside of regular school hours.
For three years, the district provided one-on-one instruction for 4.25 hours at A.J.T.’s elementary school. A.J.T. then entered middle school, which had an earlier schedule, as the instructional day began and ended earlier in the day. To account for this, the district proposed cutting A.J.T.’s instructional time to three hours. The district rejected proposals to maintain the 4.25-hour day. In response, A.J.T.’s parents filed a due process complaint with the state’s department of education. An administrative law judge (ALJ) concluded that the district denied A.J.T. a free appropriate public education (FAPE) under IDEA and ordered 495 hours of compensatory education. The ALJ also ordered the addition of certain services to her IEP, including at-home instruction from 4:30 to 6 p.m. each school day. A district court agreed, finding that the progress A.J.T. had made since enrolling in the district de minimis, that she even regressed in some areas, and that she would have made more progress with evening instruction. The school district appealed.
The Eighth Circuit affirmed the lower court’s ruling. To be substantively adequate, an IEP under IDEA must be tailored to the unique needs of the individual student and appropriately ambitious, meaning it is reasonably calculated to enable a child to make appropriate progress in light of their circumstances and give them a chance to meet challenging goals. Accordingly, the Eighth Circuit rejected the notion that IDEA’s reach is limited to the regular school hours, particularly when the school district cannot point to any IDEA provision implying or directly stating that a school district is only obligated to provide FAPE if it can do so between the school bells. The court did not automatically preclude the possibility that A.J.T. still could have received FAPE despite the short day, but the finer details of A.J.T.’s IEP and her lack of progress prevented a conclusion in the school’s favor.
Despite the few areas in which A.J.T. had been shown to be making some progress, she met none of her annual goals in 2016-2020. The court saw A.J.T.’s limited progress as strong evidence the district denied her FAPE, on the reasoning that de minimis progress from year to year can hardly be said to be an education offered at all. Further, her success rate on her toileting goal decreased from when she attended school in Kentucky. The district contended that expert opinion on the value of evening instruction for A.J.T. should not have been considered by the district court because the nature of that testimony went only toward maximizing the student’s potential and was not relevant to the more modest FAPE standard required by IDEA. The court rejected this argument, noting that the key question was not about maximizing A.J.T.’s potential. Rather it was whether the district’s purely administrative decision not to provide evening instruction caused A.J.T.’s de minimis progress and regression in some areas.
Ohio court of appeals upholds lower court’s affirmation of State Board of Education’s denial of coach’s application for three-year pupil activity permit.
Schierbaum v. Ohio Dept. of Edn., 2024-Ohio-1196.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2024/2024-Ohio-1196.pdf
David Schierbaum was the assistant girls’ volleyball coach at the Gilmour Academy from the fall 2011 season through part of the 2016 season. He was terminated from this position on Oct. 2, 2016. His pupil activity permit that had been active during the 2015-16 season expired in June 2017.
In May 2018, Schierbaum applied for a three-year pupil activity permit. In February 2020, the Ohio State Board of Education informed Schierbaum that it intended to deny his application for a number of listed reasons involving his activities with a student on the volleyball team. Schierbaum exercised his right for a hearing before the board, which was initially scheduled for March 9, 2020, and held in abeyance until December 2021 due to the COVID-19 pandemic. Following the hearing, the hearing officer issued a report and recommendation requesting that the board deny Schierbaum’s application for a three-year activity permit and order him to be permanently ineligible to apply for any license issued by the board and not permitted to hold any position in any district in Ohio that requires a license issued by the board.
In June 2022, the board adopted a resolution denying Schierbaum’s application and ordering him permanently ineligible to apply for any license, permit or certificate issued by the board. Schierbaum appealed to the Medina County Court of Common Pleas, which affirmed the board’s resolution. Schierbaum appealed.
On appeal, Schierbaum argued that his pending 2018 pupil activity permit would have expired before the December 2021 administrative hearing, rending the application moot. As such, he argues that his application should have been dismissed, not denied. The court noted that the board notified Schierbaum within the initial three-year period that it was considering barring him from applying in the future in addition to denying the pending three-year permit. The board’s actions changed the “existing controversy” from the three-year permit Schierbaum requested to additional consideration of his permanent ability to hold a license. As a result, the court found that Schierbaum had not demonstrated that the matter was moot.
Schierbaum also argued that because his pupil activity permit was never revoked, denied or suspended due to the incidents that occurred during the 2015-16 volleyball season, nor was he charged with any crimes, the board’s findings were not supported by the evidence. The board argued in opposition that Schierbaum failed to raise this argument in the trial court and, as such, is barred from raising it on appeal. The court agreed with the board, finding that because Schierbaum did not raise this issue in the trial court, he forfeited it on appeal.
Finally, Schierbaum argued that the evidence concerning “unbecoming conduct” was not proven by a preponderance of reliable, probative and substantial evidence. The court reviewed the record and the testimony offered by the board’s witnesses and found that it supported the conclusion that Schierbaum engaged in a pattern of conduct that violated the appropriate boundaries between a student and coach and was unbecoming to his position in violation of RC 3319.31(B)(1). Accordingly, the court concluded that the trial court did not abuse its discretion when it determined that the board’s resolution was supported by reliable, probative and substantial evidence and was in accordance with the law. The judgment of the court of common pleas was affirmed.
Appellate court denies city’s motion for summary judgment on mandamus action for production of records and orders the city to produce the requested records.
Feagin v. May, 2024-Ohio-1357.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1357.pdf
In August 2023, Ulysses Feagin submitted a public records request, by certified mail, to the safety service director for the city of Mansfield. The city’s human resources director, Sharon May, replied in September 2023, asking Feagin to provide more specificity. Feagin resubmitted his request about a week later. The request was for documents on police protocols, rules and regulations, and disciplinary procedures, as well as complaints filed against officers for use of force.
At the time of the request, Feagin was engaged in a lawsuit against the city. In the course of discovery for that pending case, Feagin had requested the same public records he was seeking through the mandamus action. May claimed that she had produced the documents in response to the discovery request. May filed a motion to dismiss Feagin’s mandamus action for production of the records, claiming it was moot because Feagin had already received the records as part of the federal lawsuit. The court converted her motion to dismiss to a motion for summary judgment.
The court noted that Ohio Revised Code (RC) 149.43 required public agencies to make copies of public records available to any person on request within a reasonable time period. If a person was denied that access, a mandamus action was the remedy. In order to prevail, the requesting party must establish a clear legal right to the relief.
The court noted two recent decisions of the Supreme Court of Ohio on the issue of production of public records. The court noted that it was not clear, from the record before it, whether Feagin received the requested records. In part, it relied on the fact that May had not provided copies of the documents she produced in response to the request for discovery as corroborating evidence for having met her burden to produce the documents. For that reason, it concluded that the writ for mandamus was not moot. It granted summary judgment to Feagin and ordered May and the city to produce the requested records.
However, the court denied Feagin’s claim for statutory damages under RC 149.43(C)(2), allowing a relator to recover $100 for each business day during which a respondent failed to comply with the public records law, up to a maximum of $1,000. The statutory damages are available to a requester only if they transmit a written request for the records by “hand delivery, electronic submission or certified mail” to the person responsible for the requested records. The court concluded that although Feagin claimed he had submitted his August 2023 request by certified mail, he had provided no evidence that he sent the request by one of the methods of delivery authorizing statutory damages.
Appellate court upholds summary judgment against a newly created “preparatory academy” trying to force sale of unused public school facilities both for failing to comply with community school statutory requirements and for not being within the school district’s territory.
Olentangy Preparatory Academy v. Howland Twp. Local School Dist., 2024-Ohio-783.
In August 2022, Olentangy Preparatory Academy (OPA) filed a complaint for declaratory and injunctive relief against Howland Township Local School District and Howland Local School Board (collectively, “Howland”) concerning the sale of school facilities. In its complaint, OPA alleged that it is an Ohio community school district established under Ohio Revised Code (RC) 3314 located within the territory of the Howland Township Local School District. OPA further alleged that Howland owned an “unused school facility” that it was required to offer to sell to OPA pursuant to RC 3313.411(B)(1). The complaint asserted that Howland refused to do so despite repeated requests. The trial court granted summary judgment to Howland, finding that OPA failed to comply with statutory requirements to establish itself as a community school and that, even if it had, it was not located within the territory of the Howland school district. OPA appealed.
RC 3313.411(B)(1) provides that “any school district board of education shall offer any unused school facilities it owns in its corporate capacity for lease or sale to the governing authorities of community schools, the boards of trustees of any college-preparatory boarding schools, and the governing bodies of any STEM schools, that are located within the territory of the district.” “Community schools” are established under RC 3314. Each community school is governed by the contract between a sponsor and the governing authority of the school pursuant to RC 3314.03. The contract is to specify 33 particular items, including a description of the facilities to be used (RC 3314.03(A)(9)). The contract between OPA and its sponsor, St. Aloysius, failed to include what facility OPA plans on using.
The court of appeals affirmed the lower court’s summary judgment ruling that OPA is not a community school under RC 3314 and found that, even if it were, it is not located within the territory of the Howland school district. OPA contends that the trial court wrongly assumed the charter contract of a community school must strictly comply with RC 3314.03(A) and that substantial compliance is sufficient. As this argument was not asserted until appeal, the appeals court deemed it waived. Regardless, even if OPA were to be deemed a community school under Ohio law, the record on summary judgment dispositively demonstrated that OPA is not located within Howland’s territory. OPA’s charter contract expressly stated that the school was located in Columbus City School District. Further, while St. Aloysius approved in a letter OPA’s “application” to change its location to the Howland school district, OPA’s governing board still later adopted a resolution ratifying the charter contract without these amendments. To enable Howland to comply with RC 3313.411(B)(1), it must necessarily be able to identify all community schools within the territory of the district. Relying on the documents posted on the Ohio Department of Education and Workforce’s website, namely OPA’s charter contract, Howland would see no indication of a community school operating within its district.
In series of related decisions, Fifth District Court of Appeals holds that boards of education lack standing to appeal decisions of boards of revisions regarding property valuations to courts of common pleas under RC 2605.01.
Delaware City School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1565.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1565.pdf
Lancaster City School Dist. Bd. of Edn. v. Fairfield Cty. Bd. of Revision, 2024-Ohio-1561.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1561.pdf
Lancaster City School Dist. Bd. of Edn. v. Fairfield Cty. Bd. of Revision, 2024-Ohio-1562.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1562.pdf
Olentangy Local School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1563.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1563.pdf
Olentangy Local School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1564.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1564.pdf
Olentangy Local School Dist. Bd. of Edn. v. Delaware Cty. Bd. of Revision, 2024-Ohio-1566.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1566.pdf
Westerville City School Dist. Bd. of Edn. vs. Delaware Cty. Bd. of Revision, 2024-Ohio-1567.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2024/2024-Ohio-1567.pdf
In a series of appeals with identical questions of law, the Fifth District Court of Appeals ruled that boards of education lacked standing to appeal decisions of a county board of revisions (BORs) to the court of common pleas pursuant to RC 2506.01. The question at the heart of these cases centers on the impact of House Bill (HB) 126, which went into effect in July 2022. That legislation removed the ability of boards of education to appeal decisions of BORs to the Board of Tax Appeals (BTA) under RC 5717.01. RC 5717.05 enables property owners, but not boards of education, to appeal BOR decisions to the court of common pleas. This provision was not amended by HB 126. RC 2506.01 is a separate statute that enables a court of common pleas to review “every final order, adjudication, or decision” of a political subdivision. Division (C) of that statute defines “final order, adjudication, or decision” and explicitly excludes orders, adjudications and appeals from which an appeal is granted by rule, ordinance or statute to a higher administrative authority if a right to a hearing on such appeal is provided.
The boards of education in these cases argued that when HB 126 removed their appeal rights to the BTA, RC 2506.01 was opened as an avenue for them to appeal decisions of county BORs to the court of common pleas, despite the amendment of RC 5717.01. Appellees argued that the boards of education lacked standing to bring the cases and argued for dismissal.
The appellate court ultimately determined that boards of education lacked standing and upheld dismissal of the cases. The right to appeal an administrative order is not inherent and must be conferred by statute. A trial court, therefore, only has authority to hear an appeal if that appeal is sanctioned by statute. Employing techniques of statutory construction, the court analyzed the statutes in pari materia (on the same subject) and according to the principle that the General Assembly does not act without attempting to accomplish a specific purpose. The court noted that by removing boards’ ability to appeal BOR decisions to the BTA and not amending RC 5717.05 to enable them to appeal to courts of common pleas, the legislature clearly expressed an intent to preclude boards of education from appealing BOR decisions to courts of common pleas.
Turning to the language of RC 2506.01, the court found that this provision on its own did not confer standing on any particular individual or entity. In other words, that provision in and of itself does not create a cause of action where one does not independently exist. Because these appeals are specifically covered by RC 5717, those provisions control over this more generalized statute, and the court reads RC 5717 to expressly preclude appeals of BOR decisions by boards of education.
Third District Court of Appeals finds that board of education has no right to appeal board of revision’s property valuation decision to court of common pleas under RC 2506.01 where board initiated complaint prior to the effective date of HB 126.
Marysville Exempted Village School Dist. Bd. of Edn. v. Union Cty. Bd. of Revision, 2024-Ohio1629.
https://www.supremecourt.ohio.gov/rod/docs/pdf/3/2024/2024-Ohio-1629.pdf
In March 2022, the Marysville Exempted Village School District Board of Education (board) filed two valuation complaints for the 2021 tax year with the Union County Board of Revision (BOR). In September and November 2022, the BOR rendered decisions on the two complaints. The board appealed both decisions to the Board of Tax Appeals (BTA), filing appeal notices in November and December 2022 on the respective complaints. The appeals were stayed by the BTA, pending a decision in the Supreme Court of Ohio in Marysville Exempted Village Schools Bd. of Edn. v. Union Cty. Bd. of Revision, which concerned the ability of a school board to file appeals on property evaluation decisions under RC 5717.01 after the enactment of HB 126, which eliminated a board of education’s right to appeal BOR decisions to the BTA. In that case, the court specifically found that boards of education had the right to appeal BOR determinations for cases in which the board filed the initial complaint before HB 126’s effective date in July 2022.
While that case was being decided, the board also filed separate appeals in the court of common pleas, asserting a right to an appeal to those courts under RC 2506.01, both of which were dismissed. It is those appeals to the courts of common pleas that were at issue in this particular case.
The appellate court upheld these dismissals. The board made three assignments of error, all stemming from the argument that it had the right to appeal BOR decisions to the court of common pleas under RC 2506.01. However, the court determined that it need not reach that decision, as the boards had conceded that 2506.01 does not provide a right of appeal if the board had a right to appeal under RC 5717.01. Because the Supreme Court of Ohio ruled in the companion case that the boards could move forward in their BTA appeals because the complaints were filed before HB 126 removed the board’s ability to appeal property valuation complaints to the BTA, RC 5717.01 still provided an outlet for appeal. The board thus had no appeal right under RC 2506.01.
Ohio court of appeals finds that terminated employee is not entitled to reinstatement merely because his removal order insufficiently listed reasons required by rule if the reasons were shared in a pre-disciplinary letter.
Cunningham v. Brown, 2024-Ohio-1100.
https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2024/2024-Ohio-1100.pdf
In 2017, Taron Cunningham was hired as a deputy director in the city of Youngstown’s Community Planning and Economic Development Department. In 2019, the city’s law director provided Cunningham with a pre-disciplinary letter disclosing that the city was considering termination of Cunningham’s employment. The letter included several allegations of misconduct, including an inability to adhere to workplace policy and rules, incompetence, poor communication skills, insubordination, and belligerent and hostile behavior.
In March 2019, the mayor issued a removal order. Cunningham exercised his right to appeal to the Youngstown Civil Service Commission, specifically arguing the sufficiency of the removal order. In July 2019, the commission issued a decision affirming the termination. Cunningham appealed to the trial court, alleging that the removal order failed to comply with Youngstown Civil Service Commission Rule VIII because the order failed to specify the reasons for termination. The trial court agreed with Cunningham, finding that although Cunningham may have been afforded due process, the removal order did not comply with the commission’s rule. The court vacated the commission’s 2019 decision and remanded to allow the city “to issue a compliant order of removal” and “afford [Cunningham] a full hearing should he choose to appeal” the removal order.
In March 2020, the mayor issued an amended removal order setting out the specific reasons for termination as instructed on remand. This removal order recited the reasons and examples outlined in the pre-disciplinary letter. Cunningham again appealed the removal order to the commission. In December 2021, the commission issued a decision affirming the city’s termination decision. Cunningham appealed the commission’s decision to the common pleas court, arguing he should have been reinstated with back pay as a result of the trial court’s remand judgment. Since the initial removal order was found to be invalid for violating Rule VIII, Cunningham believed he was never actually properly removed and was entitled to reinstatement and back pay from March 2019, the date of the first removal order, until March 2020, the date of the second removal order.
In April 2023, the trial court affirmed the commission’s decision, finding that Cunningham was not entitled to reinstatement merely due to the failure to list specific reasons in the first removal order. The court found no due process violation and no damages. Cunningham appealed.
On appeal, the city argued that a procedural rule deficiency in the removal order does not render a termination void or otherwise automatically entitle an employee to reinstatement. The appellate court agreed, finding that “just as a prisoner is not entitled to immediate release when a sentencing judgment fails to state the method of conviction, an employee is not entitled to reinstatement merely because a removal order fails to list the specific reasons previously detailed in the pre-disciplinary letter and reviewed at the pre-disciplinary hearing.” Contrary to Cunningham’s argument that a vacated judgment is a nullity, the court held that a judgment is not rendered void ab initio merely because it was found to have insufficiently stated reasons required by a rule. As a result, the court concluded that Cunningham’s argument that he was entitled to reinstatement with back pay was without merit.
U.S. Supreme Court holds that Title VII prohibits discrimination in job transfers that cause some harm regarding a term or condition of employment; employee does not have to show significant harm.
Muldrow v. City of St. Louis, 601 U.S. ___ (2024).
https://www.supremecourt.gov/opinions/23pdf/22-193_q86b.pdf
From 2008 to 2017, Sgt. Jatonya Muldrow was a patrol detective in the intelligence division of the St. Louis Police Department. In the position, Muldrow worked a traditional eight-hour workday between Monday and Friday each week. During part of her service, Muldrow was deputized as a task force officer by the FBI human trafficking unit. The deputization gave her privileges equivalent to those of an FBI agent, which included the potential to earn $17,500 in overtime pay.
In 2017, a male commander replaced the former female commander of the intelligence division. The new commander made numerous changes to the personnel of the division, such as moving four officers, two male and two female, including Muldrow, out of the division. Muldrow was reassigned to a district where she was required to carry out administrative tasks and supervisory responsibilities. Her salary was the same, and she had the opportunity to earn standard overtime. However, she lost her status as an FBI task force officer; had to work a rotating schedule that included weekends; no longer had access to an unmarked vehicle; and was not eligible for FBI-related overtime pay. Following her reassignment, Muldrow applied for, but did not receive, several positions in the department. In early 2018, she was reassigned to the intelligence division and became a task force officer once again.
Muldrow filed a discrimination charge with the Missouri Department of Labor’s Human Rights Commission against the department and the new commander of the intelligence division. She was issued a right to sue letter that allowed her to sue in state court. Muldrow sued the city, alleging gender discrimination and retaliation for reports of discriminatory practice in violation of Title VII of the Civil Rights Act of 1964. She also brought claims against the city and the new commander of the intelligence division under the Missouri Human Rights Act.
The city removed the claims to the U.S. District Court, which granted summary judgment to the city on both Title VII claims and denied jurisdiction over the state law claims. The district court based its decision on whether the transfer damaged Muldrow’s financial standing or career. It concluded that the reassignment did not cause her a “materially significant disadvantage” because it “did not result in a diminution to her title, salary, or benefits” and had caused “minor changes in working conditions.” The 8th Circuit Court of Appeals agreed with the district court’s decision and analysis.
Muldrow sought review by the Supreme Court of the United States, and the court granted review. The Supreme Court, in a unanimous decision, concluded that a person challenging a job transfer under Title VII must show that the transfer resulted in some harm to them but that the harm need not be significant for the claimant to prevail. Title VII prohibits an employer from discriminating against an individual regarding the terms and conditions their employment because of the person’s sex. “Discriminate against” refers to some differences in treatment that injure the employee. The language required Muldrow to show that her transfer resulted in some “disadvantageous” change, which can be more than economic or tangible, in employment terms and conditions. The court concluded that the lower courts’ requirement that a claimant show harm that is significant, material, serious or other descriptions added words to the statute and resulted in disregarding other kinds of disadvantages.
The court rejected all the city’s arguments that Title VII requires a showing of significant disadvantage. The court remanded the matter to the lower court for reconsideration based on the proper Title VII standard.
Fourth Circuit finds that West Virginia’s Save Women’s Sports Act violates Title IX as applied to middle school transgender female who sought to run on girls cross-country team and remands constitutional claim to lower court for further proceedings.
B.P.J. v. W. Va. State Bd. of Edn., 98 F.4th 542 (6th Cir.2024).
https://www.ca4.uscourts.gov/opinions/231078.P.pdf
In 2022, West Virginia enacted its “Save Women’s Sports Act,” which prohibited transgender girls and women from participating in girls and women’s sports in K-12 and college athletics. B.P.J. is a transgender girl who, at the time of the decision, was an eighth-grade student in the Harrison County School District, a West Virginia public school district. B.P.J. was assigned male at birth but has identified and lived as a female since third grade. As the Save Women’s Sports Act went into effect, B.P.J. ran on the girls cross-country team at her school. A month after the act went into effect, she filed suit against the West Virginia State Board of Education, the state superintendent, her local school district, its superintendent and the West Virginia Secondary Schools Activities Commission (WVSSAC). She alleged that the act violated the Equal Protection Clause of the 14th Amendment and Title IX of the Education Amendments of 1972 (Title IX) and sought an injunction blocking act’s enforcement. The injunction was initially granted by the district court, but the court later ruled against B.P.J. on her claims, granting summary judgment in favor of defendants (see SLS 2023-1).
The Fourth Circuit began its analysis by addressing certain procedural matters, namely whether the claims against the county board of education, the local superintendent and WVSSAC should proceed. The county board and superintendent, which were only subject to B.P.J.’s Title IX claims, argued that they should not be subject to these claims because the prohibition on transgender girls’ participation was not their policy and was rather imposed by state law. The court rejected this, however, finding that federal law prevails over state law and local policy and that compliance with state law is not a defense for a violation of a federal law such as Title IX. WVSSAC argued that it should not be subject to a Title IX or constitutional violation suit because it is not a state actor. The court rejected this argument, noting that it is in large part a creature of a West Virginia statute “authorizing schools to delegate control, supervision, and regulation of interscholastic athletic events” to the commission and designating dues paid to WVSSAC by county boards of education as “quasi-public funds.” The court further noted court precedents that have treated it as a state actor for these purposes. The court further noted that Title IX imposes restrictions not only on those who directly receive federal funds but also those organizations that “control” or “manage” federal funding recipients.
The court first analyzed B.P.J.’s equal protection claim, finding that the district court erred by granting summary judgment in favor of defendants. Because the case centers on sex-based distinctions and allegations of discrimination, intermediate scrutiny is the appropriate standard for analysis. The parties differed on exactly how and to what extent intermediate scrutiny applied, but the court ultimately determined that the case involved differential treatment among cisgender and transgender females — in other words, gender identity discrimination. The court also noted that the act treated individuals of different “sexes” — regardless of gender identity — differently, in that it restricted some individuals’ access to girls or women’s sports but not boys’ or men’s sports.
The court further explored the issue of applying intermediate scrutiny based on the fact that B.P.J. was making an argument that the act was unconstitutional “as applied” to her. The question was whether the decision to keep B.P.J. from participating on the girls team was substantially related to an important governmental interest. The government offered two interests in the exclusion: fairness and participant safety.
B.P.J. did not argue these were not important governmental interests; she argued that her exclusion was not substantially related to achieving these purposes. Given that the sport at issue here was cross-country — a non-contact sport—the only real question was the one of competitive fairness, as there were no real safety concerns. The court noted that the district court erred when it granted the defendants summary judgment on this point, noting some of the evidence proffered by B.P.J. that a transgender girl with her background and attributes would have no inherent biological competitive advantage over cisgender girls. The court explicitly rejected the argument that because girls sports were created to benefit female students, excluding all transgender girls from participating on those teams is justified. Both sides presented evidence that the amount of testosterone circulating in the individual’s body was chiefly responsible for competitive biological differences to the extent there were any. B.P.J., however, had taken puberty-blocking drugs and hormone therapy, so there was evidence that she would have no inherent advantage over cisgender competitors. The court noted that whether there was a competitive advantage in such circumstances was a question of material fact, so the trial court’s grant of summary judgment was erroneous. The court vacated the court’s ruling on this claim and remanded for further proceedings.
Turning to B.P.J.’s Title IX claim, the court determined that the trial court should have awarded summary judgment to B.P.J. Title IX’s text reads as follows: “[n]o person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Unlike the constitutional analysis, once a claimant has demonstrated that they have been improperly discriminated against and experienced harm, the government cannot justify this by pointing to an important government interest. Here, the court reiterated its conclusion that gender identity discrimination constitutes discrimination “on the basis of sex” and that it discriminates on the basis of sex assigned at birth by treating access to boys and girls teams differently. Further, B.P.J. was able to show cognizable harm by application of the law to her. The court noted that the “choice” given to B.P.J. to join the boys team and countermand her years of social and physical transition was no real choice at all, as it would contradict the protocols of her medical treatment for gender dysphoria. She also may herself be at a competitive disadvantage on the boys team due to her puberty-blocking drugs and hormone treatment. Notably, the court did not take the position that states have no authority to restrict the ability of some transgender girls from participating in girls or women’s sports in some circumstances. Rather, they found that the application of this law to B.P.J. violated Title IX.