In this issue: Administrative Regulations • Board Of Education – Policy • Community Schools • Discrimination – Age • Discrimination – Disability • Discrimination – Sex • Employee • Ethics – Gratuities • First Amendment • Immunity • Individuals With Disabilities • Nonrenewal • Public Records • Section 1983 – Due Process • Sunshine Law • Transgender Students
U.S. Supreme Court overturns Chevron deference, curtailing the authority of federal agencies to interpret federal statutes.
Loper Bright Ents. v. Raimondo, 603 U.S.___, 144 S.Ct. 2244 (2024).
https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
This case tasked the Supreme Court of the United States to review whether it should overrule its 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron went to the question of how much deference federal administrative agencies should receive when they interpret ambiguous statutes that they administer. Under Chevron, courts were to apply a two-part test when reviewing an agency’s interpretation of an ambiguous statute. First, courts were to analyze whether “Congress has directly spoken to the precise question at issue.” Second, if Congress has been silent or ambiguous, the court then asks whether the agency’s interpretation in that case was “based on a permissible construction of the statute.” If the agency’s interpretation was “permissible,” courts were to defer to this interpretation.
The petitioners’ cases challenged government actions, and lower courts had applied Chevron deference to uphold the agencies’ statutory interpretations and regulatory actions. Specifically, the controversy involved the National Marine Fisheries Service (NMFS) and its interpretation of a federal statute it enforces, the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which was enacted in 1976 to regulate overfishing and manage fishery resources. MSA contains a provision enabling regional fishery management councils to implement fishery management plans, which are ultimately promulgated as federal regulations. The relevant portion of the statute states that a management plan may require that “‘one or more observers be carried on board’ domestic vessels ‘for the purpose of collecting data necessary for the conservation and management of the fishery.’” Further, the act specifies three groups that must cover the cost of the observers: (1) foreign fishing vessels operating within the exclusive economic zone; (2) vessels participating in certain limited access privilege programs, which impose quotas permitting fishermen to harvest only specific quantities of a fishery’s total allowable catch; and (3) vessels within the jurisdiction of the North Pacific Council, where many of the largest and most successful commercial fishing enterprises in the nation operate.
At issue was the matter of whether NMFS can require Atlantic herring fishermen to bear the costs associated with any observers a plan may mandate. This question is not directly answered by MSA. In 2013, the regional council proposed a plan that would require fishermen in this region to pay the costs of observers if federal funding became unavailable, and NMFS later promulgated a federal rule to this effect. In February 2020, a group of businesses operating in the Atlantic fishery challenged this rule, alleging that NMFS’s interpretation of MSA violated both MSA and the Administrative Procedure Act (APA). The lower courts ultimately upheld NMFS’s actions, applying Chevron deference to the agency’s interpretation of the statute. The court granted a writ of certiorari solely on the question of whether Chevron should be overruled.
In this decision, the court did overturn Chevron. The court began by affirming the general principle that Article III of the U.S. Constitution empowers the federal judiciary with the ultimate authority to interpret the law. The majority discussed the history of deference to executive branch officials responsible for enforcing the law on certain matters but outlined that, prior to Chevron, this deference was very limited — primarily to fact-bound matters as opposed to questions of law. Turning to the text of APA, the court recited Sec. 706 of that statute, which directs that “to the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” Sec. 706 does not direct courts to provide any sort of deference to judicial statutory interpretation, which is notable because it does direct courts to defer to agency factfinding and policymaking.
The majority determined that Chevron deference is incompatible with the language of APA. Taking specific exception with step 2 of Chevron, the majority noted that the Chevron court did not mention APA when it directed courts to defer to a “permissible” interpretation of a statute even when it is not the interpretation the court would reach itself by applying the traditional tools of statutory construction. Chevron cited to the “long judicial tradition of according considerable weight to Executive Branch interpretations.” The majority determined that this scheme violated APA’s mandate that courts should ultimately be charged with interpreting statutes. The court rejected the argument that ambiguities in statutes constitute implicit delegations by Congress to administrative agencies to interpret those ambiguities, noting that such ambiguities are often ultimately due to a failure by Congress to answer ambiguous questions in a statute or even anticipate what questions might arise. Ultimately, agencies do not have any special expertise in the realm of statutory interpretation — that expertise belongs to courts, and the court further rejected the claim that such delegation to agencies is necessary to ensure that interpretations are informed by subject matter expertise. The majority also cited to the numerous limits and caveats placed on Chevron by the court over the years and the fact that the court itself has not applied Chevron to reach a decision since 2016.
The principle of stare decisis generally instructs the court to uphold precedents, but the court in this case ultimately determined that the principle did not require it to uphold Chevron. It found that Chevron was fundamentally misguided and has proven unworkable, focusing on the fact that it lacks justification. It went on to find that Chevron ultimately undermined the rule of law, which stare decisis exists to protect.
6th Circuit concludes that board’s policy prohibiting intentional use of nonpreferred pronouns does not violate First Amendment freedom of speech and is not compelled speech.
Parents Defending Edn. v. Olentangy Local School Dist. Bd. of Edn., 2024 U.S. App. LEXIS 18634 (6th Cir. July 29, 2024).
The Olentangy Local School District Board of Education approved three policies prohibiting the intentional use of pronouns inconsistent with a student’s gender identity when that intentional use rises to the level of harassment. An organization called Parents Defending Education (PDE) filed a lawsuit in the U.S. District Court against the district and numerous district officials, asking for a motion to preliminarily enjoin the district from enforcing the policies. PDE alleged that requiring students to use preferred pronouns violated their First Amendment rights and compelled speech in violation of the First Amendment.
The district court declined to issue the requested injunction. It concluded that the challenged policies met the standard for regulating student speech established in the U.S. Supreme Court case Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969). It further concluded that the policies did not unconstitutionally compel speech, constitute unconstitutional viewpoint discrimination or represent impermissibly overbroad restrictions (see SLS 2023-3).
PDE appealed the decision to the 6th Circuit Court of Appeals. The circuit court agreed with most of the district court’s decision. Regarding the Tinker standard for regulating speech in public schools, the circuit court concluded that the speech the district sought to regulate was “on-campus and some off-campus speech that materially disrupts classwork or the order of the school, or invades the rights of others.” It concluded that districts have the right to prohibit speech only when they have a reasonable basis to believe the speech will either substantially disrupt school activities or interfere with the rights of others. The policies must be based on more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint. However, before establishing such a policy, the school does not have to wait for a disturbance to occur. In this instance, the court concluded that the district’s policies were not unconstitutional.
The court also concluded that the policies did not unconstitutionally compel speech because students had the option to use another student’s first name, rather than a pronoun, when referring to the student. The court noted that this was similar to the compromise proposed by the university professor in Meriwether v. Hartop, 992 F.3d 492, 506 (6th Cir. 2021), which the court had viewed favorably.
Further, the court concluded that the policies challenged by PDE were not overly broad and, therefore, were not unconstitutional on that basis.
In conclusion, the court found that PDE had not met its substantial burden of demonstrating clear entitlement to immediate relief from an imminent harm. It failed to show that relevant factors weighed in its favor to the degree that a preliminary injunction was warranted.
Oklahoma Supreme Court grants writ of mandamus directing the statewide virtual charter school board to rescind its contract with religious virtual charter school.
Drummond ex rel. State of Okla. v. Okla. Statewide Virtual Charter School Bd., 2024 Okla. 53.
https://statecourtreport.org/sites/default/files/2024-06/supreme-court-of-oklahoma-opinion.pdf
The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to the Oklahoma Statewide Virtual Charter School Board to establish St. Isidore, a religious virtual charter school. St. Isidore is a religious institution whose purpose is to create, establish and operate the school as a Catholic school.
The Oklahoma Statewide Virtual Charter School Board (OSVSB) is a state body with the authority to form virtual charter schools in the state. In June 2023, OSVSB approved St. Isidore’s application to become an Oklahoma virtual charter school. Under Oklahoma law, charter schools are public schools that are required to be nonsectarian in their programs, admission policies and other operations. The state has provided model contract language for charter schools and their sponsors that reiterates state law and states that, except as permitted by applicable law, a charter school “shall be nonsectarian in its programs.” The model contract also requires a charter school to warrant that it “is not affiliated with a nonpublic sectarian school or religious institution.” However, this language was not included in the contract that St. Isidore entered into with OSVSB. Instead, the St. Isidore contract provided that St. Isidore had the right to freely exercise its religious beliefs and practices consistent with its religious protections. In the contract, St. Isidore also warranted that it was affiliated with a nonpublic sectarian school or religious institution. Due to the nature of the St. Isidore contract, the Oklahoma attorney general sought a writ of mandamus directing OSVSB to rescind the St. Isidore contract.
The Oklahoma Supreme Court held that the St. Isidore contract violated the Oklahoma Constitution, state law and the federal establishment clause. The court reiterated that Oklahoma state law does not allow a charter school to be sectarian in its programs, admission policies, employment practices and operations. The court held that this state law was in line with the Oklahoma Constitution and the establishment clause, both of which prohibit the state from using public money for the establishment of a religious institution. The opinion stated that “enforcing the St. Isidore contract would create a slippery slope and what the framers’ warned against — the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”
The Oklahoma Supreme Court rejected St. Isidore’s argument that the contract did not violate state and federal law because St. Isidore was not a public school, but “merely a private actor contracting with the State to perform a substantial benefit for the State.” The court distinguished the case from precedent, finding that the state funding would go directly to St. Isidore as opposed to providing scholarship funds to parents. The court also held that, unlike prior cases, St. Isidore was not a religious entity unaffiliated with the state that merely provided the state with a substantial benefit. Instead, St. Isidore was a public charter school and served as a governmental entity and state actor. As a public charter school, St. Isidore was “entwined” with the state and performed a “traditional, exclusive public function” (e.g. providing a free public education).
The court held that as a governmental entity and state actor, St. Isidore could not ignore the mandates of the establishment clause. The court reviewed the fact that St. Isidore planned to fully incorporate Catholic teachings into every aspect of the school, including its curriculum and cocurriculum activities; require students to spend time in religious instruction and activities; and permit state spending in direct support of the religious curriculum and activities within St. Isidore. The court held that all of these activities violated the establishment clause.
The court rejected St. Isidore’s argument that the free exercise clause prohibited the state of Oklahoma from denying its right to operate as a charter school solely because it is religious. The court held that “[e]ven if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause.”
As a result, the Oklahoma Supreme Court held that under both state and federal law, the state of Oklahoma was not authorized to establish or fund St. Isidore. By writ of mandamus, the court directed OSVSB to rescind its contract with St. Isidore.
Sixth Circuit affirmed district court’s grant of summary judgment for employer in age discrimination case where employee alleged he was repeatedly transferred and harassed because of his age.
Milczak v. GM, LLC, 102 F.4th 772 (6th Cir. 2024).
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0115p-06.pdf
Doug Milczak worked as an engineer at General Motors (GM) for almost 30 years. In November 2018, GM announced its plan to retool some of its plants to produce electric vehicles or shut them down altogether. This included the plant where Milczak worked. To scale down employee operations, GM announced that anyone hired before 2007 was eligible for voluntary severance. Milczak qualified, but he declined the severance. Following this, Milczak claimed he was often on the receiving end of “ugly and untoward conduct” on account of his age by managers and subordinates alike. Ultimately, he filed a lawsuit against GM alleging three things: hostile work environment; disparate treatment; and retaliation. GM moved for summary judgment, which the district court granted. Milczak appealed.
To succeed on his hostile work environment claim, Milczak was required to demonstrate that: 1) he was more than 40 years old; 2) he was subjected to harassment, either through words or actions, based on age; 3) the harassment had the effect of unreasonably interfering with his work performance and created an objectively intimidating, hostile or offensive work environment; and 4) there was some basis for holding the employer liable. The first prong was undisputed, so the court focused on the second and third prongs to consider whether Milczak faced age-related harassment that was severe or pervasive.
As evidence of harassment, Milczak referenced several age-explicit comments made by his manager. While his manager routinely hurled “unpleasant and foul language” and insults at Milczak, only three explicitly referenced age. As a result, the court refused to conclude that the three age-explicit comments transformed the entirety of the manager’s remarks over a three-year period into age-based harassment.
Milczak also cited other management actions that he claimed were motivated by age. These included a request that Milczak produce a summary of his contributions to the plant; his reassignment to the maintenance division without adequate training; his reassignment to a much later second shift that deprived him of overtime opportunities; and “unfounded poor [performance] reviews.” However, the court found that the record did not reasonably support Milczak’s contention that GM’s personnel actions were based on his age. The record showed that GM reassigned Milczak to fill staffing gaps resulting from the closure. His managers did not mention Milczak’s age during any of the performance-based conversations they had with him. The court found that Milczak relied on his own subjective belief that these actions were taken because of his age. In reviewing the three age-explicit comments, the court found that these comments were neither objectively severe nor pervasive. Although the court found the comments “abhorrent,” it held that they were more properly characterized as “mere offensive utterances” and did not rise to the level of creating a hostile work environment.
The court also rejected Milczak’s disparate treatment claims, finding that he did not show that he was treated any differently than younger employees. The court found that even assuming Milczak established a prima facie case, GM could provide a legitimate, nondiscriminatory rationale for Milczak’s transfer — it was set to wind down operations at Milczak’s plant and he had not applied for a position at other plants.
Finally, the court rejected Milczak’s retaliation claims due to his failure to show that any adverse action bore a causal connection to his protected activities. The court acknowledged that Milczak engaged in protected activity when he complained about his manager’s age-based comments and filed an Equal Employment Opportunity Commission charge. However, the court highlighted that Milczak’s negative performance reviews occurred over a year after he engaged in his protected activity and merely formalized problems management had identified and raised with Milczak before he engaged in the protected activities.
As a result, the court affirmed the district court’s grant of summary judgment for GM.
Sixth Circuit affirms district court’s decision to award summary judgment to school board on an Americans with Disabilities Act case because employee failed to engage in the interactive process.
Smith v. Shelby Cty. Bd. of Edn., 2024 U.S. App. LEXIS 19388 (6th Cir. Aug. 1, 2024).
https://law.justia.com/cases/federal/appellate-courts/ca6/23-5815/23-5815-2024-08-01.html
Harold Smith worked as an educator for the Shelby County Board of Education (SCBE) in Tennessee for 27 years. At the close of pandemic restrictions in 2021, the board mandated on-site, in-person instruction.
Smith underwent heart and kidney transplant surgery shortly before the beginning of the 2020-21 academic year. Six months after the surgery, Smith’s medical providers provided a letter releasing him to return to work. The letter stated that, while working virtually would be the best option for Smith, the board, Smith and his medical team should discuss whether Smith would be required to work in person. The letter also included precautions to be taken should he be required to be in the presence of others.
After completing his Family and Medical Leave Act leave, Smith worked remotely in accordance with the board’s policy for all teachers at the time. However, when the board decided that all teachers would return to in-person instruction in March 2021, Smith requested to continue to teach his classes remotely due to his health status. At that time, Smith presented a second letter from his medical providers recommending and requesting that he be permitted to work from home in a virtual capacity until at least one year post-transplant. While the district acknowledged the accommodation request, it proposed two alternatives that would allow Smith to work from two remote locations at the school building where he would have limited contact with students. The board informed Smith that working from home was not a reasonable accommodation. The board also discussed the possibility of additional leave with Smith. Smith declined these options and did not return to the school building. He also did not utilize the board’s sick leave protocol. The board launched an investigation that resulted in a misconduct hearing and a three-day suspension without pay. At that time, Smith’s contact with the board ended.
In January 2022, Smith sued the board, alleging discrimination based on a failure to accommodate his disability under the Americans with Disabilities Act (ADA). The board sought summary judgment on the basis that in-person attendance was an essential function of Smith’s job and that he failed to engage in the interactive process when he rejected the board’s reasonable accommodations and cut off communications. The court initially denied the board’s motion and concluded that there was a genuine dispute of material facts as to whether in-person instruction was an essential function of Smith’s job. However, the board filed a motion for reconsideration, in which it argued that Smith was not a qualified individual to bring a claim under ADA because he ceased communications with the board during the interactive process. The district court granted the motion for summary judgment for the board on the basis that Smith failed to properly engage in the interactive process. Smith appealed this decision to the circuit court.
On appeal, the circuit court examined the ADA requirements, which prohibit discrimination against a qualified individual based on disability. Under ADA, an employee with a disability bears the burden of proposing an accommodation that will permit them to effectively perform the essential functions of their job. Employers must then consider: (1) the particular job involved, its purpose and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the employee’s preference.
Smith proposed that he continue to teach his classes from his home using the remote capabilities that SCBE had deployed during COVID-19 restrictions, which he argued was reasonable. However, reasonableness of a proposed accommodation alone is not dispositive. The court noted that, where there is more than one reasonable accommodation, the choice of accommodation is the employer’s. Further, even if the employee’s proposal met the reasonableness requirement, the employee remained obligated to continue with the interactive process, absent a showing that the employer acted in bad faith.
The court noted that under ADA, both parties must participate, in good faith, in a mandatory interactive process to identify the precise limitations resulting from the employee’s disability and any potential reasonable accommodations that could overcome those limitations. If a party failed to participate in good faith, the court should attempt to isolate the cause of the breakdown and assign fault to the responsible party. Employers who take an active, good-faith role in the interactive process are not liable under ADA if the employee refuses to participate.
The court concluded that the board had acted in good faith in the interactive process by engaging in multiple communications with Smith, offering proposals that were responsive to his health needs and continuing to explore options even after his suspension. The court noted that if an individual rejects the employer’s reasonable accommodation, the individual will no longer be considered a qualified individual with a disability under ADA.
In this instance, the court concluded that Smith chose silence over working with the board to find a meaningful solution that would reconcile his health-related limitations with the board’s in-person or on-site requirements. The court concluded that the board could not be held responsible for Smith’s withdrawal from the process and that Smith bore the responsibility for the breakdown in the interactive process and, as a result, forfeited his “otherwise qualified” status under ADA.
Sixth Circuit finds that school district did not unlawfully discriminate against pregnant special education teacher whose contract was not renewed, despite supervisor’s frustrated comments about employee’s proposed breast-pumping break schedule.
Childers v. Casey Cty. School Dist. Bd. of Edn., 2024 U.S. App. LEXIS 19389 (6th Cir. Aug. 1, 2024).
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0339n-06.pdf
Jessica Childers was employed as a special education teacher within the Casey County School District in Kentucky. In 2020, she took maternity leave after giving birth to a child. As she prepared to return to work in October 2020, she met with the principal to identify a place within the school building where she could pump breast milk, which was ultimately determined to be at a spot within her classroom with a cover over the window on the door. She also met with the special education director and proposed a work schedule that included two 30-minute periods of personal time in the day. Childers reports that the director became angry when she proposed this schedule and argued that she would need to spend more time with students. At a subsequent meeting, he indicated that he was going to cut her pumping breaks to 20 minutes apiece and cut her planning period by 30 minutes to compensate. Childers never actually reduced her pumping time.
On three different occasions over the school year, someone entered Childers’ classroom while she was pumping. Also, on one occasion her door window cover was removed. She declined to remove it when the principal emailed staff asking them to remove such covers as part of a safety audit and refused again when asked in person. During this time Childers also was ordered to submit paperwork for a special education student that joined the district while she was on leave. Although Childers reported that the paperwork was not completed, she did not submit the required verification, and the district lost federal funding for the student. At a subsequent evaluation, she was rated by the principal as “Developing” instead of “Accomplished,” and this rating was upheld by a review committee. Her teaching contract was subsequently not renewed.
Childers filed suit against the district, the principal and the special education director, alleging discrimination, retaliation, hostile work environment, outrageous conduct and gross negligence. She brought her suit under Title IX and a state civil rights law, alleging sex discrimination. The district court rejected all these claims, and the Sixth Circuit affirmed. Turning first to the discrimination claim, the court found that Childers failed to show direct evidence of discriminatory intent, as her proffered evidence of the removed door window cover, the demand that she shorten her pumping periods and the special education director’s reaction to her proposal failed to demonstrate “a bias against women with pregnancy-related conditions” that in turn prompted her termination.
Short of direct evidence, Childers needed to show circumstantial evidence of discriminatory intent, which she also failed to do per the court. To demonstrate this, the court stated that Childers would need to meet the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the burden of establishing a prima facie claim of discrimination. Then, if they can do so, "the burden shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment decision at issue," which the plaintiff may then rebut with evidence that "the defendant's stated reason is mere pretext for its true discriminatory motives." The school district defendants contended that Childers’ poor evaluation was due to poor performance, noting the paperwork failure that resulted in a loss of funding. The poor performance, they contended, was a legitimate and nondiscriminatory reason for the adverse action.
Childers argued that the district’s reasons were pretextual, but the court rejected this. First, she attempted to argue that, regarding the paperwork incident, the mistake actually happened before she returned and in reality she had caught the mistake. However, the court noted that seeing that the forms were submitted on time was ultimately her responsibility and she failed to accomplish the task. The court also rejected Childers’s attempt to point to the special education director’s behavior when she proposed her break schedule, noting that this behavior was not in any way connected to her poor evaluation.
Lastly, the court rejected Childers’s argument that she was subjected to a hostile work environment. Childers submitted the following as evidence of a hostile work environment: the instruction to reduce her pumping sessions to 20 minutes; the questioning of the purpose of her personal periods in her draft schedule; removal of the covering on her door; people entering her classroom while she pumped; and the director stating that her schedule "wasn't going to work" because "[t]here's no way he's going to pay [her not] to see kids and — he's not going to pay [her] to do nothing." The court weighed these arguments and found that they ultimately did not rise to the high level of creating a hostile work environment, noting the privacy invasion incidents were not sufficiently frequent. The court found that the behavior and comments of the special education director to her proposed break schedule were not “severe, physically threatening, or humiliating; at most, they constituted ‘mere offensive utterance[s].’”
Sixth Circuit finds that county did not violate employee’s constitutional due process rights by requiring him to undergo a fitness-for-duty evaluation after he made threatening comments toward superiors.
Capen v. Saginaw Cty., 103 F.4th 457 (6th Cir.2024)
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0125p-06.pdf
Jeffrey Capen was a maintenance worker employed by Saginaw County, Michigan, from 2007 to 2021. In 2020, Capen’s coworker reported that he had threatened to kill his supervisor and other employees in the controller’s office. After receiving this report, Robert Belleman, the controller and chief administrative officer for Saginaw County, met with Capen on Dec. 14, 2020, and gave him a letter scheduling him for a “fitness for duty” examination with a psychologist and placing him on paid administrative leave. That same day, Capen received a letter stating that the examination would take place on Dec. 15, the next day.
After the examination, the psychologist reported that Capen had tremors, complained of memory problems and difficulty keeping records, and reported being diagnosed with brain lesions. Based on this, the psychologist concluded that Capen was unable to perform the work in his job description; had serious issues with impulse control and decision-making; and that his conditions could have resulted in a personality change. Further, he found that Capen very likely made the statements reported and that his statements of violence indicated at least a moderate risk. He referred Capen for a full neuropsychological evaluation.
On Feb. 1, 2021, Belleman sent Capen a letter informing him of this determination and “requested that Capen apply for short-term disability leave, asked Capen to release his medical records to the County, and requested the contact information for Capen’s primary-care doctor and treating neurologist.” Through counsel, Capen responded, alleging that the county had violated the Americans with Disabilities Act (ADA) and requested to be returned to work immediately. He also provided a statement from his physician stating that he could be returned to work. The county responded with a letter directing Capen to participate in an “interactive process” under ADA and state law, as they believed he could not complete his duties without an accommodation. The county set a meeting in September at which they would engage in this process and told Capen that his failure to participate in this process would be considered an abandonment of his position. After Capen failed to attend this meeting, the county initially sent him a termination letter, then later corrected and supplemented this by offering him a pretermination hearing. Capen did not respond and was terminated on Oct. 8. A few weeks later, Capen filed suit against the county and Bellemen under Section 1983, alleging that he had a right to refuse to participate in the fitness for duty evaluation under the due process clause of the 14th Amendment and that the county had violated this right.
The district court rejected Capen’s claim and granted summary judgment to the county defendants, finding that Capen lacked a protected interest and was in fact afforded adequate due process. It also found that Belleman was entitled to qualified immunity. The Sixth Circuit affirmed this decision, finding that Capen could not succeed on a Section 1983 claim because he could not show that either his constitutional or statutory rights had been violated. For a procedural due process claim, a plaintiff must demonstrate that: “(1) he is deprived (2) of a constitutionally protected interest in life, liberty, or property (3) through state action and (4) the deprivation occurs without adequate process.”
The court noted that while fitness for duty evaluations are often important tools for determining the competency of an employee, Capen did not necessarily demonstrate that his due process rights were violated in this instance. Capen had argued a liberty interest in the right to refuse medical treatment, which has been recognized as a protected right by the U.S. Supreme Court in Cruzan ex rel. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). However, the Sixth Circuit noted that in this instance, Capen was not being forced to accept any treatment at all and that the examinations were for descriptive purposes only. At no point was his continued employment made conditional on his acceptance of counseling or any other medical treatment. The court noted that Cruzan focused extensively on the right to bodily autonomy and the “freedom from unwanted touching.” Here, however, there was no comparable physical intrusion, so the same interests were not implicated.
The court went onto note that even though Capen did not raise the arguments, it did not appear that Capen’s property interests were implicated either. While he did have a property interest in his continued employment, the deprivation was not based on the fitness for duty examination; it was rooted in his refusal to engage in the ADA interactive process.
Supreme Court of the United States overturns local public official’s conviction under federal law prohibiting gratuities, holding that regulating such conduct is an issue for states and local governments.
Snyder v. United States, 603 U.S. ___, 144 S.Ct. 1947 (2024).
https://www.supremecourt.gov/opinions/23pdf/23-108_8n5a.pdf
James Snyder was the mayor of Portage, Indiana. In 2013, while Snyder was mayor, the city awarded two contracts to a trucking company, Great Lakes Peterbilt, purchasing five trash trucks from the company for about $1.1 million. In 2014, the company wrote a check to Snyder for $13,000. Snyder alleged that the check was for consulting services he had provided to the company as a contractor.
Snyder was charged and convicted of a violation of a federal antigratuity statute, 18 United States Code 666, which prohibited state and local officials from corruptly accepting anything of value from any person intending to be influenced or rewarded for an official act. Snyder appealed his conviction to the Seventh Circuit Court of Appeals, which upheld the conviction. He then appealed to the Supreme Court of the United States, which overturned the conviction.
The Supreme Court concluded that this federal antibribery law does not make it a federal crime for state and local officials to accept a gratuity for acts that they have already taken. The court concluded that the federal law was a bribery statute, not a law prohibiting gratuities. Further, the court concluded that, because states have the prerogative to regulate the permissible scope of interactions between state officials and their constituents, the federal law at issue in Snyder’s conviction significantly infringed on state’s rights by prohibiting gratuities that state and local governments would have allowed.
The court also found that the federal statute, as applied to state and local officials, would create traps for unwary state and local officials because it lacked clear lines separating permissible and criminal gratuities. The court concluded that the federal law at issue could not act as a supplement to state and local laws by subjecting 19 million state and local officials to federal prison sentences for accepting commonplace gratuities.
Sixth Circuit Court of Appeals affirms district court’s actions on principal’s claims that her First Amendment freedoms of speech and association were violated.
Blick v. Ann Arbor Pub. School Dist., 105 F.4th 868 (6th Cir. 2024).
https://law.justia.com/cases/federal/appellate-courts/ca6/23-1523/23-1523-2024-06-27.html
Shannon Blick was a principal of an elementary school in the Ann Arbor Public School District. In 2019, the school district placed her on paid leave to investigate her role in a custodian's over-billing scheme. After two years, the school district terminated Blick's contract.
Blick sued the district, alleging that various officials violated her First Amendment freedoms of speech and association. She also brought race discrimination, due process and conspiracy claims against these officials. The district court granted summary judgment to the district on Blick’s First Amendment claims and dismissed the other claims.
Blick appealed the district court’s decision to the Sixth Circuit Court of Appeals. The circuit court affirmed the district court’s decisions, holding that Blick did not show reversible error.
Blick’s First Amendment claims were that the district imposed a prior restraint barring her from speaking during her leave and took harmful actions against her in retaliation when she nonetheless chose to speak. The court noted that prior restraint and retaliation were two different claims. Prior restraint occurs when governments, in their employer capacity, restrict the speech of public employees on threat of termination or other discipline.
By contrast, retaliation occurs when a public employer disciplines an employee for their past speech. Past speech of public employees is protected if the employee had spoken as a private citizen, rather than as part of their official duties, on a topic of public concern. If these two elements exist, the employee may prove a retaliation claim by showing that the employer took an adverse action against them and that their protected past speech at least partially motivated this harmful action. If the employee can establish both of these elements, the employer can avoid liability by providing that they would have taken the same harmful action against the employee even if the employee had not spoken.
The court considered Blick’s prior restraint and retaliation claims and concluded that both failed because the briefing filed on her behalf did not include the speech she wanted to convey or what she said to trigger her retaliation claim. For this reason, the court was unable to conduct the fact-specific inquiry into whether the First Amendment would have protected her speech on the prior restraint claim. Further, the court concluded that it could not assess Blick’s retaliation claim because she did not identify the speech for which she was retaliated against. Without protected speech, the claim failed.
The court also dismissed Blick’s freedom of association claims on the basis that neither claim alleged facts sufficient to suggest that the district interfered with her First Amendment-protected freedom of association.
The court also concluded that Blick could not hold the school district liable for its alleged policy or custom of violating its employees’ First Amendment rights. The court concluded that because Blick failed to show that any individual school officials violated her First Amendment rights, her claim against the district also failed.
Finally, the court affirmed the district court’s dismissal of Blick’s other three claims on the pleadings. It examined the documents filed on her behalf in the appeal and concluded that none of the three claims being appealed was argued successfully. Specifically regarding her discrimination claim, the court noted a recent Supreme Court case that could have called the district court’s decision, based on prior precedent of the court, into question. However, it concluded that it was not required to consider the effect of the recent case law because Blick’s counsel failed to alert the court of the decision or challenge the existing precedent.
Sixth Circuit upholds dismissal of due process claim by teacher who resigned after “pre-deprivation meeting” resulting from an investigation into teacher’s overheard conversation with her husband in which she discussed a student.
Kosch v. Traverse City Area Pub. Schools, 2024 U.S. App. LEXIS 18571 (6th Cir. July 26, 2024).
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0325n-06.pdf
Erin Kosch was a tenured teacher at the Traverse City Area Public Schools with 27 years of service in the district. In October 2020, the district was still delivering remote instruction due to the COVID-19 pandemic. One day, Kosch was not aware that her microphone was on between classes on Zoom, and she began speaking negatively about a student referred to as “M.B.” with her husband. Another student who had logged in for the class overheard the conversation and began recording it with her cellphone. The video made its way to M.B.’s parents, one of whom was also a teacher in the district, and the parents complained to the administration. The district’s Human Resources (HR) Director Dr. Cindy Berck informed Kosch that she was being suspended without pay while the incident was investigated.
The district scheduled a “pre-deprivation meeting” on Oct. 27, 2020. Berck informed Kosch that this was a “due process meeting” and that disciplinary actions could result. She was informed that she could have a union representative attend the meeting, but the district would not allow her to have her legal counsel present. At this meeting, the district advised Kosch of two consequences that could result from the process: she could resign in good standing or tenure charges could be filed with the board of education for violating the Family Educational Rights and Privacy Act of 1974 and district policies. Berck reiterated that no decision had yet been made. Kosch ultimately resigned after she considered that this was the best way to protect her pension. She also realized how viral the video had gone after she received an email about the video from someone outside the district. She tendered her resignation the day following the meeting.
Over time, Kosch reconsidered her decision to resign and filed suit against the district and Berck, raising state law claims of breach of contract and intentional infliction of emotional distress and a claim of a procedural due process violation under both federal and state law. The defendants removed the case to federal court, and the federal court declined to exercise supplemental jurisdiction over the state law claims. The district court granted summary judgment to the defendants, and Kosch appealed.
The Sixth Circuit affirmed the grant of summary judgment. Berck had raised a qualified immunity defense, and the court began by analyzing this claim. A plaintiff bringing a Section 1983 action against a public official must show that “(1) the defendant violated a constitutional right and (2) that right was clearly established.” Specifically on the issue of the procedural due process violation, Berck would need to show “(1) she had a protected interest, (2) she was deprived of that interest, and (3) the state did not afford her adequate process before the deprivation.” The parties contested the second prong, as Kosch argued that she was constructively discharged from her position.
The court disagreed. Beginning its analysis, the court noted that “an employee may be considered constructively discharged when her ‘working conditions [are] so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’” The court found no evidence that Berck compelled Kosch to resign, noting that she followed district policy by providing Kosch with a pre-deprivation meeting and advising her that no decision had yet been made on disciplining her. The court rejected Kosch’s argument that Berck intimidated her by playing her the video at the meeting and that she was denied due process by a refusal to have her attorney present, noting that there was no policy on the attendance of an attorney at such a meeting. The court went on to note that even if Kosch were able to establish that a right had been violated, there was nothing to support the assertion that right was “clearly established,” noting that no applicable case law would support this assertion.
Turning to Kosch’s claim against the district, the court noted that she could not establish liability through respondeat superior (or supervisory liability) and could only succeed if she could show that the district maintained a policy or custom that resulted in the deprivation of her rights. Because Kosch was unable to point to such a custom or policy, the court upheld dismissal of this claim.
Ohio court of appeals finds trial court erred in holding that genuine issues of material fact remain on whether employee immunity exceptions apply to former employee’s claims against superintendent.
Murtha v. Rossford Exempted Village Schools, 2024-Ohio-1798.
https://cases.justia.com/ohio/sixth-district-court-of-appeals/2024-wd-23-022.pdf?ts=1715364449
Patrick Murtha was the assistant high school principal and athletic director with the Rossford Exempted Village School District. Murtha’s employment with the district ended in July 2019 pursuant to an agreement that was executed between Murtha and the school board following an investigation of three students’ complaints alleging that Murtha had engaged in inappropriate conduct. In April 2021, Murtha filed a complaint in the court of common pleas asserting several claims against the district and the superintendent concerning the events surrounding his separation from employment. The claims included breach of contract, defamation, false light, intentional infliction of emotional distress, negligence and violations of procedural due process, substantive due process and Murtha’s liberty interests under the Ohio Constitution. The district and superintendent moved for summary judgment on all claims. Among other things, the superintendent argued that as an employee of a political subdivision, he was immune from liability for Murtha’s tort claims. The trial court denied the motion for summary judgment, holding that genuine issues of material fact remained on whether the superintendent was immune under Ohio Revised Code (RC) Chapter 2744. The superintendent appealed.
RC Chapter 2744 provides immunity from liability to employees of political subdivisions — including employees of a public school district — unless one of three exceptions apply. First, immunity will not be provided if the employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities. Second, immunity will not be provided if the employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. Finally, immunity will not be provided if civil liability is expressly imposed upon the employee by a section of the Revised Code.
In this case, Murtha alleges that the second exception applied because the superintendent acted with a malicious purpose, in bad faith or in a wanton or reckless manner in connection with Murtha’s separation from employment. Specifically, Murtha alleged that the superintendent’s handling of the investigation was so far outside of the district’s policies for such investigations as to make the superintendent’s actions reckless. Murtha argued that the district was obligated to provide him with more specific information about the allegations against him in a timelier manner, the investigator was required to get signed written statements from the complainants and the investigator should have reviewed CCTV video surveillance footage in the building. However, the court held that even if these statements were true, the assertions did not create a genuine issue of material fact that the superintendent acted with recklessness, wantonness, malice or bad faith.
Murtha also alleged that the superintendent released inaccurate or misleading information about him, thus demonstrating recklessness. Specifically, Murtha claimed that the superintendent’s statements on an Ohio Department of Education (ODE) reporting form and in a letter that was sent to the community that Murtha resigned were inaccurate since he worked for the district for the remainder of his employment contract. Murtha also claimed that the district’s characterization of his conduct as “inappropriate” in those communications conflicted with the agreement he entered into with the district. In reviewing these claims, the court found that Murtha did not set forth sufficient evidence to create a genuine issue that the superintendent’s characterization of Murtha’s conduct or his separation from employment in the ODE report or community letter was done recklessly or with wantonness, malice or bad faith. The court found that the superintendent’s characterization of Murtha’s conduct as “inappropriate” reflected the conclusion of a thorough investigation and therefore did not rise to recklessness or malicious. Similarly, the court held that even if the characterization of Murtha’s separation from employment as a “resignation” was not entirely precise — and they expressed no opinion on whether it was or not — these statements could not be construed as meeting the high bar of RC 2744.
Murtha also alleged that the district redacted language from the investigators’ report that discussed the student complainants’ likely retaliatory motive for filing their complaints and that, by doing so, the superintendent withheld from the public all potentially exculpatory information regarding Murtha. The superintendent contended that state and federal law required that the district redact personally identifiable information about the students. The court held that the superintendent’s compliance with state and federal laws could not be the basis for a claim that he acted recklessly or with wantonness, bad faith or malice.
The court also rejected Murtha’s argument that all records relating to complaints of an educator’s misconduct were confidential under Ohio law. The court held that RC 3319.311(A)(1), the confidentiality law cited by Murtha, applied to the State Board of Education, or the superintendent of public instruction on behalf of the board, and did not apply to local school districts. In this case, because the investigation was conducted entirely within the district by a district employee, completed before ODE was contacted and released only in response to a public records request, the court found that the district’s release of the reports did not “demonstrate a disposition to perversity” as required by RC 2744.3(A)(6)(b).
In conclusion, the court of appeals held that the trial court erred in holding that genuine issues of material fact remained on whether the exception to immunity applied to Murtha’s claims against the superintendent. The court of appeals reversed the judgment of the court of common pleas.
Sixth Circuit declines to enforce five-year-old IEP as the “stay-put” for a student during the pendency of special education litigation and finds that student lacked a “then-current educational placement” as parents had unilaterally decided to homeschool the student.
J.L. v. Williamson Cty. Bd. of Edn., 2024 U.S. App. LEXIS 19406 (6th Cir. Aug. 2, 2024).
https://www.opn.ca6.uscourts.gov/opinions.pdf/24a0341n-06.pdf
J.L. is a student with a disability who was enrolled in the Williamson County Public School District in Tennessee. He had been served with an individualized education program (IEP) since preschool, due to diagnoses of disruptive mood dysregulation disorder and attention-deficit/hyperactivity disorder (ADHD). In 2019, his last-implemented IEP indicated that J.L. would be educated “in both the general and special education settings, with behavioral supports accompanying him when he was among non-disabled students.” In October 2019, due to incidents of physical aggression and elopement, the district proposed a new IEP, which would have placed J.L. “in a publicly-funded therapeutic classroom designed to provide ‘a wrap-around approach [that] decrease[d] significant problem behaviors, with the goal of transitioning [J.L.] back to a less restrictive setting.’”
J.L.’s parents disagreed with this placement change and filed a due process complaint to challenge the decision. In spring 2020, after J.L.’s behaviors escalated while the parents’ due process complaint was pending, the district filed a due process complaint of its own, seeking what is known as a Honig injunction to remove J.L. immediately from his placement due to safety concerns, citing incidents in which he had injured staff, destroyed a computer and eloped. The parties ultimately settled the Honig matter in June 2020, with the district agreeing to provide homebound instruction for three hours per week, and the parties agreeing that the homebound placement “resolved the issues between them” concerning J.L.’s stay-put for the 2019 due process complaint. In fall 2020, the parents identified a private placement, Robson Academy, for J.L. to attend. The parties settled the parents’ 2019 due process complaint, and the district agreed to pay for J.L. to attend Robson.
In 2021, J.L.’s behaviors had escalated at Robson to a point where the placement advised the family that he was no longer welcome to attend, and J.L. finished out that school year in an online homeschool program. In anticipation for his return to the district in 2021, the parties held a series of IEP meetings to determine J.L.’s placement but were unable to determine a placement, resulting in a second due process hearing filed by the parents. J.L. spent the year homeschooled, and the parents voluntarily withdrew the complaint in March 2022. The parents enrolled J.L. at another private school at the beginning of the 2022-23 school year; however, by December 2022, the parents had withdrawn him from that school and were again planning to enroll him in the district. After the parties again disagreed over placement, the parents brought a third due process complaint, and argued at the hearing that J.L.’s stay-put rights entitled him to the 2019 IEP. The administrative law judge ruled in favor of the district and disagreed with the parents on J.L.’s stay-put. J.L.’s parents sought relief on this point in the federal district court, which also ruled in favor of the district. The parents appealed to the Sixth Circuit.
“Stay-put” refers to the principle in the Individuals with Disabilities Education Act (IDEA) that generally allows a student to remain in their educational placement while a due process complaint over the child’s services proceeds. The right is codified at 20 United States Code (USC) § 1415(j) and operates “as an automatic statutory injunction once the plaintiff has made its two-factor showing — (1) a “proceeding[] conducted pursuant to” 20 U.S.C. § 1415 is ‘pend[ing],’ and (2) the child has a ‘then-current educational placement’ in which he must remain.” The sole question on appeal was what was J.L.’s “then-current educational placement”. The parent’s argued that J.L.’s 2019 IEP was the “then-current educational placement,” but the district disagreed.
The Sixth Circuit ultimately ruled in favor of the district. The court noted that IDEA does not define “then-current educational placement” and reviewed it in light of the law’s purpose. While one purpose of stay-put is to prohibit the school from making unilateral decisions about the child’s placement, it does not exist to give parents the unilateral authority to choose the child’s placement. The court reviewed some previous decisions attempting to operationalize the term and found that the terms “remain” and “then-current” connote the preservation of the status quo.
The district argued that J.L. was not entitled to stay-put because there was essentially no ”then-current educational placement” at the time the due process complaint was filed, as the parents had unilaterally chosen to homeschool J.L. The Sixth Circuit agreed, noting that this was a rare case. At the time the complaint was filed, J.L. did not attend a school at all, neither a public school in the district or a private school. The Sixth Circuit indicated that the scenario that had unfolded for this student was “not how the IDEA is supposed to function.” The parents had tried to argue that the 2019 IEP was the stay-put, but the court rejected this argument, noting the significant amount of time that had passed since then and that the parties had agreed to a different placement since then (the 2020 Honig settlement). The court ultimately declined to impose the 2019 IEP as the stay-put and advised the parties to conduct themselves differently to avoid this result in the future.
Supreme Court of Ohio reverses nonrenewal of a teacher’s limited contract when board failed to conduct three observations of teacher actually engaged in teaching.
Jones v. Kent City School Dist. Bd. of Edn., 2024-Ohio-2844.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2024/2024-Ohio-2844.pdf
Shawn Jones was hired by the Kent City School District Board of Education to teach during the 2019-20 school year and entered into a limited contract with the board for one year. In October 2019, Jones was issued an unpaid three-day suspension for leaving the school building before the end of the school day on six days without notifying the administration and for failing to fulfill his duties on early-release days and teacher workdays. In January 2020, Jones did not appear for work and did not appropriately schedule a substitute or notify his administrators that he would be absent.
In response, Jones was notified in a letter from the district’s assistant superintendent that he would be placed on a “full cycle OTES evaluation.” The “full cycle OTES evaluation” referenced in this letter was a reference to the Ohio Teacher Evaluation System (OTES), which is the process the district used to comply with its evaluation requirements under Ohio Revised Code (RC) 3319.111. Under that statute, school boards must conduct “at least three formal observations” of any teacher employed under a limited contract if the school board is considering nonrenewal of that contract.
The first observation took place on Jan. 29. Before the second observation could be conducted, the process was disrupted by the COVID-19 pandemic. In March 2020, the board entered into a memorandum of understanding (MOU) with the teachers union that allowed teacher observations to be completed virtually through distance-learning means in a manner agreed upon by the assistant superintendent and the teachers union president. The board conducted its second observation of Jones on May 1 and scheduled its third observation of Jones for May 11. However, Jones woke up on May 11 with chest pains and went to the hospital. He spent the day in the hospital and was medically excused from work by his doctor until June 1. On May 15, the evaluator attended a remote-learning session in which Jones’ students met to discuss their progress on an assigned project. Jones was not present during this session.
At the board meeting on May 19, the board considered a recommendation from the superintendent to not renew Jones’ contract. The board unanimously approved the nonrenewal recommendation and Jones was notified of that decision in a letter dated May 20. On May 28, the evaluator submitted a final-summative-rating report regarding Jones’s effectiveness as a teacher and rated Jones as “accomplished,” the overall highest level.
Jones exercised his right to a hearing. Following the hearing, the board entered executive session and voted to affirm its decision not to renew Jones’s contract. Jones appealed the board’s decision to the court of common pleas, which affirmed the board’s nonrenewal decision. Jones appealed to court of appeals, which reversed the common pleas court’s judgment. The court of appeals concluded that the evaluator did not conduct any observation of Jones teaching during the students’ virtual meeting on May 15. As a result, the court held that the board failed to comply with the requirements of RC 3319.111. The board appealed.
On appeal, the Supreme Court of Ohio affirmed the court of appeals’ judgment. RC 3319.111(E) states that “the board shall require at least three formal observations of each teacher who is under consideration for nonrenewal.” The board asserted that it had complied with the collective bargaining agreement, MOU and OTES model, arguing in part that the procedures for teacher evaluations set forth in those documents superseded the process required under the law. The board argued that it conducted three formal observations of Jones because OTES permitted a formal observation to be a “visitation of a class period or viewing of a class lesson” and that’s what the evaluator did when conducting the May 15 observation. The court rejected this argument, finding that the language of the statutes applies despite what the parties may have agreed to in the collective bargaining agreement, the MOU or by the adoption of the OTES model for teacher evaluations and observations. Since Jones was not observed three times, the board did not comply with RC 3319.11(E) and RC 3319.111(E) and such failure required the court to reverse the board’s decision not to reemploy Jones. The court remanded the matter to the common pleas court for calculation of Jones’s back pay.
Supreme Court of Ohio denies writ of mandamus against school district records commission, finding that the district had produced all responsive records in its possession.
State ex rel. Ames v. Three Rivers Local School Dist. Records Comm., Slip Opinion No. 2024-Ohio-2686.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2024/2024-Ohio-2686.pdf
On April 29, 2023, a citizen filed a public records request to the Three Rivers Local School District requesting records of the Three Rivers Local School District Records Commission. The request sought the rule for notification of meetings required by RC 121.22(F), the minutes and notices for several years of meetings and copies of the commission’s approved records retention schedules. The district’s treasurer responded to the request and provided a copy of a policy regarding notification of the district’s board of education meetings. The policy did not explicitly state whether it applied to the commission in addition to the board. She also provided access to a website where agendas and unsigned minutes of the commission’s meetings were kept and copies of the district’s approved records-retention schedules.
In response, the citizen filed a writ of mandamus, ordering the commission to produce records in response to his public records request. In his writ, the citizen argued that the commission failed to comply with his request for the rule, minutes and notices. Regarding the rule, the citizen argued that the provided policy was not responsive, because it applied to the board rather than the commission. The commission, however, averred that it did not have a meeting-notification policy separate and apart from the policies it had provided. Regarding the minutes, the commission averred that minutes of the 2021 meeting did not exist and the 2023 meeting did not occur, so minutes of that meeting also did not exist. Finally, in response to the request for meeting notices, the commission averred that notices for the commission’s meetings in 2021 and 2022 did not exist.
The court held that the commission provided evidence showing that it had produced all documents in its possession that were responsive to the citizen’s public records request. As a result, the court denied the request for a writ of mandamus as moot. The court also declined to award statutory damages, attorney fees or court costs.
In its merit brief, the commission argued that it was not “sui juris” and did not possess full capacity and rights to sue or be sued. Because the court denied the writ for other reasons, it declined to decide that issue.
Sixth Circuit court of appeals concludes township’s termination of general counsel’s employment did not violate 14th Amendment due process requirements.
Esordi v. Macomb Twp., 2024 U.S. App. LEXIS 18976 (6th Cir. July 29, 2024).
Thomas Esordi served as the general counsel and human resources director for Macomb Township, Michigan, from January 2017 until November 2020. Earlier in 2020, the board had considered terminating Esordi’s contract and held a Loudermill hearing. The vote to terminate the contract after the hearing was deadlocked, and Esordi’s employment continued. However, in November 2020, the board of trustees voted to eliminate the dual position held by Esordi. Esordi was informed that his services were no longer required on Nov. 25, 2020.
Esordi sued the board, alleging violations of state law, in April 2020 following the attempt to remove him from his positions. In March 2021, Esordi added a federal Section 1983 claim that the board denied him due process when it eliminated his two employment positions. The board removed the case to the U.S. District Court, which declined to exercise supplemental jurisdiction of the state law claims. Both sides moved for summary judgment on the Section 1983 claim. The district court granted summary judgment for the board. Esordi appealed the decision to the Sixth Circuit Court of Appeals.
The circuit court noted that, when reviewing a grant of summary judgment, it must view the evidence in the light most favorable to the nonmoving party. Summary judgment is proper when there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.
The court concluded that, in order to prevail on his claim, Esordi would have had to show that he had a protected property interest in continued employment with the township. Esordi argued that he had a protected property interest both through his employment contract and through an implied contract.
Regarding Esordi’s argument about the employment contract, which stated that the township needed just cause to terminate Esordi’s contract, the court concluded that the agreement violated Michigan public policy. Michigan law allowed the township to hire an attorney but also stated that township employees serve at the township’s pleasure, meaning the board can terminate the employment of those employees at will. The township lacked authority to grant indefinite just cause tenure to an employee. As a result, Esordi’s contract and his employment agreement were illegal and void because of conflicts with Michigan law.
The court also concluded that the employment contract violated Michigan public policy because it limited the township board’s ability to terminate Esordi except for good cause, thereby tying future boards to a contract entered into by a prior board.
The court also considered Esordi’s argument that the township’s holding of a Loudermill hearing in April 2020 created an implied contract and property interest in his employment. The court concluded that holding a Loudermill hearing was insufficient for the board to create an implied contract between Esordi and the board. The board was not authorized to enter into an implied contract because doing so would have contravened its charter. As a result, because Esordi’s contract was void under Michigan law and there was no implied contract with the board, Esordi failed to demonstrate a property interest and his Section 1983 claim against the township failed as a matter of law.
Supreme Court of Ohio finds that public bodies may only enter executive session to consider the purchase of property for public purpose if disclosure of information would give “an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.”
Look Ahead Am. v. Stark Cty. Bd. of Elections, 2024-Ohio-2691.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2024/2024-ohio-2691.pdf
Starting in 2018, the Stark County Board of Elections began to consider the purchase of new voting machines for the county. At four meetings, the board entered executive session to discuss the purchase of the equipment. The board’s stated purpose for going into executive session was to discuss the purchase of the equipment as property for public purposes under Ohio Revised Code (RC) 121.22(G)(2). Ultimately, the board decided to purchase the equipment from Dominion Voting Systems and voted in a public session to do so. On May 18, 2021, Look Ahead America filed suit against the board alleging a violation of the Open Meetings Act and seeking to have the board’s purchase of the voting machines from Dominion set aside. Specifically, they alleged that the board had gone into executive session for an improper purpose.
RC 121.22(G)(2) allows public bodies to go into executive session “to consider the purchase of property for public purposes, the sale of property at competitive bidding, or the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with section 505.10 of the Revised Code, if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.” Look Ahead argued that a public body such as the board in this case may enter executive session to consider “the purchase of property for a public purpose” only if disclosure would give “an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest.” In other words, it interpreted the last portion of the statute to apply to all of the possible reasons to go into executive session listed in 121.22(G)(2). The board, by contrast, argued that the final provision only applied to “the sale or other disposition of unneeded, obsolete, or unfit-for-use property in accordance with section 505.10 of the Revised Code.” Therefore, under its reading, that restriction did not apply to the board’s purpose for entering executive session.
While both the trial court and appellate court agreed with the board’s interpretation, the Supreme Court of Ohio disagreed and found that the unfair advantage restriction applies to the purchase-of-property provision and all the other reasons for entering executive session found in RC 121.22(G)(2). It found that despite the ordinary grammatical “rule of the last antecedent,” [a] qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.” The court found that because “a comma separates the list of permissible reasons for a public body to enter executive session and the premature-disclosure clause,” that clause applies to all of the reasons. It therefore remanded the case below for further proceedings.
Trial court upholds Ohio HB 68 impacting medical treatments for transgender youth and banning the participation of transgender girls in girls and women’s sports.
Moe v. Yost, Franklin C.P. No. 24CVH03-2481 (Aug. 6, 2024).
On Aug. 6, the Franklin County Court of Common Pleas issued a decision upholding Ohio House Bill (HB) 68, allowing the act to go into effect for the first time. The bill, which was passed over the governor’s veto earlier this year, was slated to go into effect in April. However, the plaintiffs in this matter filed suit to block enforcement of the law. In April, the trial court granted a temporary restraining order (TRO) against enforcement of the act. The TRO had been in place since that time. A trial was held on the matter in July, and the court determined that the act was constitutional and lifted the TRO.
HB 68 contained two key provisions. The first was the Saving Adolescents from Experimentation (SAFE) Act, banning medical providers from performing certain medical interventions to enable transgender youth to medically transition. It prohibits mental health providers from providing certain defined gender-related mental health services to transgender youth without parental permission. It also requires these mental health providers to screen for other “comorbidities” or other conditions before providing “gender-related care” as defined in the statute.
The bill also contained the “Save Women’s Sports Act,” which requires school districts to designate separate boys/men’s, girls/women’s and coeducational teams. The act bans the participation of transgender girls or other individuals assigned male at birth in sports designated as girls or women’s sports at the K-12 and collegiate levels. Under the new provisions, if a school district or the Ohio High School Athletic Association violates the rule, individuals who suffer harm or are retaliated against for reporting a violation have a cause of action against the district or association.
The plaintiffs were several transgender youth who filed suit alleging that the act violates the Ohio Constitution. Specifically, they alleged that the act violated the single-subject rule, requiring that “No bill shall contain more than one subject, which shall be clearly expressed in its title.” The plaintiffs also argued that it violated their rights under the Ohio Constitution’s health care freedom amendment, the equal protection clause and the due process clause.
The court rejected these arguments and granted summary judgment in favor of the state defendants, lifting the TRO it previously imposed. First, the court determined that the plaintiffs had standing to bring suit. On the single-subject rule argument, the court began with the principle that courts should generally afford the General Assembly with great latitude when it passes legislation. It then cited Supreme Court of Ohio precedent finding that “[t]he mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics." The court found that a common purpose of the whole of the bill was “the General Assembly’s regulation of transgender individuals” and thus complied with the single-subject rule.
Turning to the plaintiffs’ other arguments, the court rejected the plaintiffs’ argument under the Health Care Freedom provision in the constitution, finding that the provision does not prohibit the General Assembly from punishing what it defines as “wrongdoing” by providers in the industry. Because the legislature decided to define it in this way, the court determined that it would be inappropriate for the court to set it aside. On the equal protection and due process arguments, the court found that transgender individuals were not a suspect class and that no fundamental right had been burdened. Therefore, the act was subject only to rational-basis review, and the court found that it passed muster under this deferential standard, pointing to an interest in protecting the health of citizens and some evidence submitted at trial about the perceived risks of some of these treatments.