A federal district judge has approved an agreement that permits an Ohio student to wear a pro-gay T-shirt to his high school whenever he chooses.

Maverick Couch, a student at Waynesville High School, faced a threat of discipline when in April 2011 he wore a shirt that said, "Jesus Is Not a Homophobe" on the National Day of Silence, a day for students to show support for gay rights and tolerance.

The principal of Waynesville High allegedly told him that the shirt was disrupting school and that it promoted a religious message and that "religion and state have to be separate." He was barred from wearing the shirt.

Couch and his parents turned to Lambda Legal Defense and Education Fund, a gay rights organization, to press the school district to drop the ban. They argued that the shirt's message was clearly speech protected by the First Amendment.

In a Feb. 24 letter to Lambda Legal, a lawyer for the school district said that he disagreed that the T-shirt was protected. The district's lawyer asserted that the message communicated by the shirt was "sexual in nature and therefore indecent and inappropriate in a school setting."

Couch and his parents sued the school district in April, and this month, the district agreed to a judgment in the student's favor.

On May 21, U.S. District Judge Michael R. Barrett of Cincinnati accepted the "agreed judgment." In the judgment in Couch v. Wayne County Local School District, Barrett ruled that Couch was the prevailing party and that the student "is expressly permitted to wear the 'Jesus Is Not a Homophobe' T-shirt to school when he chooses."

The judgment awards a total of $20,000 in damages, costs, and attorney's fees to the Couch family and their lawyers.

Photo: Maverick Couch, a gay student whose southwest Ohio high school prohibited him from wearing a T-shirt designed to urge tolerance of gays, is suing the school, saying it's violating his freedom of expression right. (Lambda Legal/AP)

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The U.S. Supreme Court declined review of a Kentucky high school sports rule that restricts the amount of merit-based financial aid students may receive and remain eligible for competition.

The justices refused to hear the challenge to Bylaw 13 of the Kentucky High School Athletic Association brought on behalf of four girls attending a Roman Catholic high school in Louisville. The four students at Presentation Academy said they had to choose between declining additional merit aid or giving up interscholastic competition on the volleyball, cross country, or track teams.

The Kentucky association adopted the rule to deter the recruitment of student-athletes by its non-public member schools. The bylaw says student athletes may accept merit aid totaling no more than 25 percent of tuition at their schools, and they may not accept aid from groups outside the control of the school or its governing board. Students may receive as much as 100 percent of their tuition in need-based financial aid and remain eligible for sports.

Parents of the four girls challenged the bylaw in state court as unfair, arbitrary, and capricious. Because some of their claims implicated federal law, the KHSAA had the case removed to federal court. A federal district court dismissed the federal claims, and in a December 2011 decision, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, affirmed.

"The KHSAA has enacted a broad rule to limit improper athletic recruiting carried out through the use of pretextual 'merit-based' academic scholarships," the 6th Circuit court said. "The 25 percent cap on merit-based aid may not be a perfect rule, and there might indeed be better methods of preventing the harm of improper recruitment, but a perfect, well-tailored rule is not required."

In their appeal to the Supreme Court, the parents argued that Bylaw 13 arbitrarily singles out Roman Catholic private schools because they have their own classification under the KHSSA. The association noted in a brief that Catholic schools have their own classification because they are governed by their Catholic dioceses instead of by individual school governing boards.

The justices declined without comment to hear the parents' appeal in Evans v. Kentucky High School Athletic Association (Case No. 11-1131.

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The U.S. Supreme Court on Monday upheld a federal definition of "child" that means children born through in vitro fertilization after the death of a parent may not be guaranteed Social Security survivors' benefits.

The unanimous decision required the high court to consider implications of advances in the conception of children that were not contemplated when Congress passed the Social Security Act in the 1930's to provide insurance benefits for the surviving spouses and children of workers.

Justice Ruth Bader Ginsburg wrote for the court that the Social Security Administration was entitled to deference over its interpretation of the relevant statute requiring that an applicant for surviving children's benefits be a "natural child." Though there was no dispute that the twins involved in the case were the natural children of Robert Nicholas Capato, who died of esophageal cancer in 2002, a further provision requires that to qualify for benefits a child must be eligible to inherit property under relevant state law.

Facing his cancer diagnosis, Capato donated sperm for possible use for in vitro fertilization. The twins were born 18 months after his death.
Under "intestacy" law in Florida, where Capato lived at the time of his death, the twins were not entitled to inherit their father's property because they were conceived after his death.

The twins' mother, Karen Capato, applied for Social Security benefits on the twins' behalf, but the federal government denied her claim. She argued that a provision of Social Security law defining child as a "child of an [insured] individual" should have settled the case because the twins clearly fit that definition. The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, agreed with her in a decision last year.

The Social Security Administration appealed that decision to the Supreme Court. In its decision today in Astrue v. Capato, the high court concluded that the "child of an insured individual" provision had to be read in concert with another provision of the act that makes reference to state inheritance laws.

Justice Ginsburg said that Ms. Capato's argument that "biological" children of a parent be eligible for benefits is not supported by the law.

"In 1939, [when the Social Security Act was amended to provide survivors' benefits to family members] there was no such thing as a scientifically proven biological relationship between a child and a father, which is part of the reason that the word 'biological' appears nowhere in the act," Justice Ginsburg said.

She noted that a biological parent is not necessarily a child's parent under law. "Moreover, laws directly addressing use of today's assisted reproduction technology do not make biological parentage a universally determinative criterion," she said.

Meanwhile, the Social Security Act's reliance on state inheritance laws in some circumstances to determine who is a "child" serve the act's objective of "providing dependent members of a wage-earner's family with protection against the hardship occasioned by the lost of the insured's earnings," Justice Ginsburg said.

"Intestacy laws in a number of states ... do provide for inheritance by posthumously conceived children, and under federal law, a child conceived shortly before her father's death may be eligible for benefits even though she never actually received her father's support," the opinion said. "It was nonetheless Congress' prerogative to legislate for the generality of cases. It did so here by employing eligibility to inherit under state intestacy law as a workable substitute for burdensome case-by-case determinations whether the child was, in fact, dependent on her father's earnings."

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A federal appeals court has revived the pregnancy-discrimination lawsuit of a Florida teacher who was fired from a Florida Christian school purportedly because she had disobeyed "the word of God" by engaging in premarital sex.

The school might have been able to raise the "ministerial exception" to job-bias laws recently recognized by the U.S. Supreme Court, but the appeals court said the school failed to properly raise the defense.

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Atlanta, ruled unanimously that teacher Jarretta Hamilton's case should go before a jury. Hamilton conceived a child in January 2009 with her fiance, one month before they married, court papers say.

The teacher went to her superiors at Southland Christian School in Kissimmee, Fla., in April of that year to reveal her pregnancy and seek maternity leave. During the meeting, Hamilton acknowledged that she had conceived the child before getting married. The school fired her a few days later, with the school's administrator, John Ennis, telling her, "there are consequences for disobeying the word of God," her lawsuit alleged.

Hamilton sued based on Title VII of the Civil Rights Act of 1964, the federal anti-discrimination law that was amended in 1978 to cover job bias based on pregnancy. A federal district court dismissed the pregnancy-discrimination claim, ruling that the Hamilton had not established a "prima facie" case of bias because she had not shown that comparatively situated non-pregnant workers were treated differently.

In its May 16 decision in Hamilton v. Southland Christian School, the 11th Circuit court panel reversed the district court and held that the teacher did allege a facial case of discrimination.

The court noted that Title VII does not protect job actions based on premarital sex, but does protect against pregnancy discrimination.

"Hamilton presented evidence that, in making the decision to fire her, Southland was more concerned about her pregnancy and her request to take maternity leave than about her admission that she had premarital sex," the 11th Circuit court said.

For example, the teacher testified at deposition that, after she told the administrators about her pregnancy but before she told them she had conceived before getting married, John Ennis "put his head back and he said, 'we feared something like this would happen,'" the opinion recounts.

The school did raise the "ministerial exception" as a defense at the district court level, but the district judge said it didn't apply in Hamilton's case. (There was some evidence that the Christian school did not consider the teacher a minister.)

Meanwhile, the Supreme Court ruled earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission that there is a broad "ministerial exception" that churches may invoke in defense of job-discrimination claims by the ministers of their faith. The high court that a Lutheran teacher who had been trained in the faith's ministry and had some religious duties at her school could not sue over alleged disability discrimination.

In the Florida case, which was evidently argued before the 11th Circuit court before Hosanna-Tabor was decided on Jan. 11, the appeals court said Southland Christian School could have raised the ministerial exception as one defense to Hamilton's suit. But the school mentioned the issue only in passing in its briefs.

"Southland abandoned that exception as a defense by failing to list or otherwise state it as an issue on appeal," the court said. "A passing reference to an issue in a brief is not enough, and the failure to make arguments and cite authorities in support of an issue waives it."

The court said that because the school did not properly assert the ministerial exception defense, it was not deciding whether it might apply in this case.

The court said Hamilton has established a "genuine issue of material fact" about the actual reason why she was fired, and that is a question for a jury to decide.

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The U.S. Department of Education on Tuesday issued a document that discourages schools from using restraints and seclusion on students.

The "resource document" outlines 15 principles for states, school districts, and educators to consider with regard to policies on restraints or seclusion.

"These principles stress that every effort should be made to prevent the need for the
use of restraint and seclusion and that any behavioral intervention must be consistent with the
child's rights to be treated with dignity and to be free from abuse," Secretary of Education Arne Duncan says at the beginning of the document. "The principles make clear that restraint or seclusion should never be used except in situations where a child's behavior poses imminent danger of serious physical harm to self or others, and restraint and seclusion should be avoided to the greatest extent possible without endangering the safety of students and staff."

My Education Week colleague Nirvi Shah reports further on the document at her On Special Education blog.

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It's only a matter of $1 in nominal damages, but the stakes in a Monday decision by a federal appeals court are much higher for litigation under the federal Individuals with Disabilities Education Act.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously that nominal damages are not available under the federal special education law. Nominal damages are usually symbolic and typically involve small amounts of money. They are distinct from compensatory damages, which are meant to compensate for specific types of losses. (Sometimes a plaintiff seeks only nominal damages to win such a symbolic victory; other times, plaintiffs may have sought more substantial damages but a court awards only a nominal amount.)

The May 14 decision in Oman v. Portland Public Schools has implications for cases in which students have aged out of public schools and thus could not benefit from "prospective relief" such as court-ordered changes to their education plans.

The 9th Circuit ruled in the case of an Oregon mother, Pat Oman, and her son who was diagnosed with "special learning needs" in 2nd grade and provided an individualized education plan under the IDEA. Years later, the child was rejected for admission to a magnet high school in the Portland district because he was achieving well below grade level. The boy's mother sought records, including those in the personal possession of his teachers, to determine why the boy had not succeeded in his IEP.

This resulted in a clash with the district, which the 9th Circuit described as quickly going into "litigation mode."

The mother filed various suits and claims over her son's education, seeking monetary damages that the 9th Circuit opinion doesn't detail (though she was likely seeking more than the $1 nominal award).

Most of her claims were dismissed by a federal district court because she was representing him but was not an attorney. However, the district court took up three of the mother's claims of alleged retaliation by school officials. The court held that the district's in-house lawyer had acted to discourage the mother from exercising her statutory rights to challenge the boy's IEP. The district court awarded $1 in nominal damages under the IDEA and Section 1983, a federal statute that allows individuals to assert their civil rights against government actors. (It isn't clear that the mother only sought nominal damages.)

The school district appealed that ruling. In its decision Monday, the 9th Circuit reversed, holding that "the wording of the IDEA does not disclose a congressional intent to provide ... a remedy for nominal damages."

The court noted that some parents who sue school districts under the IDEA do so on behalf of children who have already graduated high school, and thus such families are normally not entitled to prospective relief such as court orders.

"Creating a remedy for nominal damages would prevent such cases from becoming moot and would entitle the parents (if successful and if they had attorneys) to attorneys' fees," the court said. "As
such, recognizing a cause of action for nominal damages could have considerable impact on the remedial scheme."

The ruling does not appear to involve one major area of IDEA case law where parents may receive significant compensation. Under decisions by the U.S. Supreme Court and lower courts, parents in a dispute with a school district over the special education placement of their child may "unilaterally" place that child in a private school and receive a public reimbursement if a court later holds that the public school placement was not appropriate.

On a separate issue, the 9th Circuit on Monday rejected a counter-appeal by the mother over the magnet school's rejection of her son for admission. Oman brought that claim under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, seeking damages because the school rejected her son based on his disability.

But the 9th Circuit said that the Rehabilitation Act "does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate, but merely requires them not to exclude a person who is otherwise qualified based upon his or her disability."

The court said it was not unreasonable for the magnet school in Portland to require a minimum of 8th grade proficiency, which Oman's son did not meet.

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A federal appeals court on Thursday chimed in again in a long-running dispute over whether the No Child Left Behind Act permits so-called intern teachers to be considered "highly qualified" under the law.

The decision by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, again holds that a federal regulation allowing such intern teachers to meet the NCLB definition of highly qualified violated the text of of NCLB. But the court acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect.

Underlying the case is a battle between the forces of traditional teacher education, including schools of education, and proponents of alternative-teaching programs such as Teach for America. The lawsuit was filed by a group of California activists including California ACORN, Californians for Justice, and groups of minority parents and children, who argue that the Education Department regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.

In its new ruling in Renee v. Duncan, the 9th Circuit panel pointed out that Congress's action, known as Section 163 of a 2010 appropriations bill, was only temporary, through the end of the 2012-13 academic year.

"Section 163 has temporarily modified NCLB," says the opinion by Judge William A. Fletcher. "It provides that the term 'highly qualified teacher' in NCLB includes a teacher who meets the requirements of [the Department of Education regulation]. Section 163 thus provides that an alternative-route teacher who merely 'demonstrates satisfactory progress toward full certification' is 'highly qualified' within the meaning of NCLB. Under Section 163, [the regulation] is consistent with NCLB and is therefore valid. That is, so long as Section 163 remains in effect, it overrules our decision in Renee II."

Renee IISeptember 2010 decision which had blocked the federal regulation that favored intern teachers and which prompted the congressional action It should not be confused with an even earlier ruling (Renee I) by a 9th Circuit panel that had reached the opposite conclusion about intern teachers. The newest decision, issued May 10, is thus Renee III.

In the new decision, the 9th Circuit court said that "by its own terms, Section 163 remains in effect only through the end of the 2012-13 school year. If Congress takes no further action, the pre-Section 163 version of NCLB will again be the law. In that event, [federal regulation] will again be invalid because its definition of 'highly qualified teacher' will again be inconsistent with the statutory definition."

Fletcher wrote the Renee II decision. Judge Richard C. Tallman, who dissented in Renee II and called the lawsuit an attack on Teach for America, wrote a partial dissent to Fletcher's new opinion, criticizing it for its lengthy re-iteration of the reasons why the pre-Section 163 regulation would violate the text of NCLB.

"Because the regulation can no longer violate NCLB, it is unnecessary for the majority to address in this opinion whether--prior to the enactment of Section 163--the challenged regulation violated NCLB," Tallman said. "Any discussion about the pre-Section 163 regulation is largely immaterial to the issue now before us because it depends upon a prediction of what Congress may do in 2013. What Congress has done is prospectively overrule Renee II."

Tallman said he agreed that under legal principles that if Congress fails to act to renew Section 163 by 2013, the majority's opinion in Renee II would again become controlling.

But given Congress's enactment of Section 163, "the discussion of whether the regulation violated NCLB pre-Section 163 becomes wholly irrelevant," Tallman said.

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A federal appeals court has ordered a lower court to give greater scrutiny to a North Carolina school district's student-assignment plan, suggesting that the district's move away from racial diversity goals is inconsistent with a long-running court-supervised desegregation plan.

The case involves the 23,000-student Pitt County school district, which has been under court supervision for desegregation since the 1960s. The case was largely dormant when, in 2006, a parents' group filed a complaint about race-conscious student assignments with the U.S. Department of Education's office for civil rights. The district and the parents' group, the Greenville Parents Association, clashed before settling the complaint, with the parents' group backing away from efforts to have the district declared unitary, or legally desegregated. The district, meanwhile, agreed to include the parents' group in the planning and discussion for its 2011-12 assignment plan.(The district's enrollment is 48.3 percent black, 38.3 percent white, and 9.2 percent Hispanic this year.)

In 2010, the school district adopted a plan with less reliance on racial diversity and ended up with a new school with a high concentration of minority students. This prompted complaints from a second parents' group, the Pitt County Coalition for Educating Black Children, that the plan was moving the district toward more racially identifiable schools with lowered student achievement.

The coalition sought the intervention of the U.S. District Court overseeing the district's desegregation orders. The coalition argued that the 2011-12 student assignment plan moved the district further away from becoming a unitary system.

The district court sided against the coalition, ruling in August 2011 that intervention would disrupt the school system and that a review of the district's progress towards unitary status was due by December 2012.

The coalition appealed, and in a May 7 decision, a panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 to set aside the lower court's decision.

"Given that there is no dispute that the school district has not attained unitary status, the evidentiary burden should have been on the School Board to prove that the 2011-12 Assignment Plan is consistent with the controlling desegregation orders and fulfills the School Board's affirmative duty to eliminate the vestiges of discrimination and move toward unitary status," Judge James A. Wynn Jr. said for the majority in Everett v. Pitt County Board of Education.

The court remanded the case to the district court for further factual development.

In dissent, U.S. Circuit Judge Paul V. Niemeyer said the 2009 settlement of the Greenville Parents Association's OCR complaint purported to settle all disputes in the desegregation case "going back to the 1960s and 1970s." The burden of proof was properly on the other parents' group, the Pitt County Coalition for Educating Black Children, when it brought its motion to have the district court reject the 2011-12 assignment plan, and the district court properly rejected the group's efforts, Judge Niemeyer said.

The coalition is represented by the Center for Civil Rights at the University of North Carolina law school, which has a Web page devoted to the case that includes legal briefs for both the coalition and the school district.

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New Jersey's highest court has upheld a law and regulations that curb unused sick leave and certain other benefits for school administrators in the state.

The unanimous ruling by the New Jersey Supreme Court overturns an appellate court decision that had struck down the provisions on the basis that they would deprive some school district superintendents, assistant superintendents, and business administrators of their vested tenure rights.

"We conclude that the legislature had the authority to modify terms and conditions for future contracts for public employment in a manner that did not raise constitutional concerns," the state high court said in its May 3 decision in New Jersey Association of School Administrators v. Schundler. "The laws that protect tenure rights did not prevent the legislature's later actions. In this case, the legislature properly exercised its power when it directed the commissioner [of education] to issue regulations for new contracts for superintendents and assistant superintendents."

The curbs grew out of concerns about excessive increases in compensation and benefits for local school administrators in the Garden State, including from a 2006 report by the State Commission on Investigation titled "Taxpayers Beware: What You Don't Know Can Cost You: An Inquiry Into Questionable and Hidden Compensation for Public School Administrators."

The legislature adopted a new layer of oversight, the executive county superintendent of schools, who must approve the hiring, compensation, and benefit plans for top administrators of the state's 603 local school districts.

The legislature also found that many administrators were cashing in substantial accumulated sick-leave amounts. It capped the amount of sick-leave payouts that certain education employees could receive upon retirement at $15,000.

In 2008, New Jersey's education commissioner issued regulations interpreting the curbs and setting out more specific limits on compensation and benefits for school administrators. The state administrators sued to challenge the new rules.

A state appellate court found that the rules infringed the vested tenure rights of administrators and reduced the compensation of some assistant superintendents.

The New Jersey Supreme Court found that the law and its regulations apply only prospectively.

"The statute does not deprive officials of any property already earned, and it protects existing contract rights," the court said. "The legislature enacted the statute in the wake of reports by two of its own committees, which highlighted excessive benefits for school administrators in general, and excessive payments for unused sick leave in particular."

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A federal appeals court has upheld U.S. Department of Education regulations that interpret the main special education law as not covering a process for optimizing cochlear implants used by deaf children.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in Washington, unanimously upheld the 2006 regulations interpreting the 2004 renewal of the Individuals with Disabilities Education Act. One judge said in a concurrence, though, that the Education Department's rule regarding cochlear implant "mapping" is "troubling" and "far from satisfactory."

Such mapping involves periodic calibration of a cochlear implant so that a person with profound hearing loss may continue to receive and understand auditory signals.

The 2004 version of the IDEA includes language that the terms "related services" and "assistive technology devices" do not cover surgically implanted devices such as cochlear implants. The act says states or school districts are not responsible for "selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing" surgically implanted medical devices. However, the statutory definition of "related services" did not address whether states must generally provide optimization and maintenance services for such surgically implanted devices.

In its 2006 regulations interpreting the 2004 version of the IDEA, the Education Department amended the regulatory definition of "related services" to exclude "a medical device that is surgically implanted, the optimization of that device's functioning (e.g., mapping), maintenance of that device, [and] the replacement of that device."

The regulations did impose some obligations on school districts with respect to cochlear implants, such as requiring them to ensure that the external components of such devices are working properly.

The regulations were challenged by two families with children using cochlear implants whose school districts stopped covering the costs of "mapping" services after the rules came out. Their suit claims the regulations do not comport with the statute.

The families lost in a federal district court and before the D.C. Circuit court panel. In its April 13 decision in Petit v. U.S. Department of Education, the appeals court held that the department's mapping rules do not violate the plain language of the IDEA.

Judge Harry T. Edwards, in the main opinion, said it was a "close question," but "we nonetheless think that [the families] have fallen short of demonstrating that 'audiology services,' as used in the IDEA, unambiguously encompasses mapping."

The court also said the Education Department's interpretation was a reasonable one, and that its justifications for the regulation were rationally related to the goals of the IDEA. For example, the mapping process requires a high level of training and thus "is distinct from the routine checking of acoustical hearing aids and of the external components of a cochlear implant, both of which can be performed by trained lay persons, teachers, and school nurses."

The court added that "the mapping regulations are entitled to our deference."

Judge Karen LeCraft Henderson, in her concurrence, said she agreed the statute was ambiguous and that the department's interpretation was permissible.

"The Congress enacted IDEA ... to ensure that all children with disabilities are provided a free appropriate public education designed to meet their unique needs, not only those children with disabilities that are more easily or cheaply corrected," Henderson said. "While I cannot say that the mapping regulations are ultra vires (beyond the powers) in light of the deference we are duty-bound to afford them, they do not, in my opinion, correctly and fairly implement the IDEA."

[Hat Tip to NSBA's Legal Clips for bringing this decision to my attention.]

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