September 2008 Archives

A federal appeals court has revived a lawsuit filed by a school district payroll supervisor who says he lost his job after asserting his rights under the federal Family and Medical Leave Act.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, reversed a federal district judge who had ruled for the Brevard County, Fla., school district in the case.

In its Sept. 30 decision in Martin v. Brevard County Public Schools , the appeals court said the payroll supervisor, Anthony G. Martin, had raised genuine factual issues in his suit and thus the school district did not warrant summary judgment in its favor.

The court said Martin was arguably entitled to leave under the federal law because he was caring for his granddaughter when the girl's mother--Martin's daughter--was scheduled to be deployed for overseas military duty in 2003.

Before granting Martin the leave, school district officials had given him an unsatisfactory job evaluation in several areas and required him to fulfill an improvement plan, according to court documents. The district told Martin his employment contract would not be renewed if the FMLA leave kept the worker from fulfilling his improvement plan. Martin's suit said the district's actions interfered with his rights under the FMLA.

The appeals court said it was a matter of dispute whether Martin would have been able to fulfill his improvement plan had he not taken leave that was presumably valid under the federal law.

"Whether Martin would have been retained and his contract renewed if he had been able to complete the final three-plus weeks of his improvement plan is a matter of speculation," the court said. "Martin was unable to complete the plan as a result of his being—at least arguably—on proper FMLA leave."

The appeals panel sent the case back to federal district court for further proceedings.

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A state appeals court in Massachusetts has upheld the reinstatement with full back pay of three teachers who were fired by their school district for "failure to demonstrate fluency in English."

A three-judge panel of the mid-level Massachusetts Court of Appeals on Sept. 25 unanimously upheld decisions by an arbitrator and a state trial court that the Lowell school district had violated the teachers' procedural rights because the teachers could not cross-examine the graders of a standardized oral-proficiency the teachers had failed.

Also, the district failed to follow state guidelines by not relying first on classroom observation of the teachers' English fluency, the court said.

The decision in School Committee of Lowell v. Oung is available at the site of the Massachussetts Reporter of Decisions under Appeals Court opinions.

Two of the teachers had emigrated from Cambodia, and the third was from Puerto Rico. They were terminated in 2003 by the Lowell district, which was seeking to comply with state regulations requiring that it certify annually that all its teachers were literate and fluent in English. The teachers were tenured and had received satisfactory evaluations for several years before their firing, the appeals court said.

The three teachers challenged the dismissal with the help of the Asian American Legal Defense and Education Fund, which has this press release about the decision.

The Lowell Sun says in this story that the school district was still evaluating the ruling.

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Education Law Association: The group formerly known as the National Organization on Legal Problems in Education holds its annual conference in San Antonio in November, and the program is jam-packed with interesting sessions.

Topics include drug testing of teachers, racial diversity in schools, cyberbullying, student free speech, religious issues in public schools, Title IX, and legal issues stemming from the No Child Left Behind Act, among many others.

The conference is Nov. 19-22 at the Sheraton Gunter.

Suit on Disclosure of Student Information Settled: A Virginia school district has settled a lawsuit charging that it helped a city government in targeting Hispanics in the enforcement of zoning codes, The Washington Post reports. (Second item.)

The suit alleged that the Manassas city school district disclosed confidential student information to inspectors from the Manassas city government and the city used the information to target overcrowded residences, the Post reported.

The Equal Rights Center, a civil rights group that brought the suit on behalf of 11 Manassas residents, says in a news release that the city and school district will pay $775,000 in damages, attorneys' fees, and other costs. The Post says the school district's share of that is $150,000, to be paid by its insurer.

Plaintiffs Face Tough Road in Job-Bias Suits, Analysis Says: A study being published in the Winter 2009 edition of the Harvard Law & Policy Review concludes that employers have a better track record than workers in appeals of employment-discrimination cases. The study suggests fewer plaintiffs are venturing into federal court under such laws as Title VII of the Civil Rights Act of 1964.

"The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential employment discrimination plaintiffs from seeking relief in the federal courts," says the study by Kevin M. Clermont and Stewart J. Schwab, both law professors at Cornell University.

The study may be of interest to school lawyers, since school districts, as large employers in most places, typically face frequent federal employment-discrimination lawsuits.

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The U.S. Department of Education’s office for civil rights has weighed in on the U.S. Supreme Court’s 2007 decision on school districts’ consideration of race in assigning students to schools.

In a “Dear colleague” letter dated Aug. 28, the office boiled down nearly 180 pages of opinions by the justices in Parents Involved in Community Schools v. Seattle School District to barely two pages of analysis.

“The Department of Education strongly encourages the use of race-neutral methods for assigning students to elementary and secondary schools,” the OCR letter says. “Genuinely race-neutral measures” such as those based on a student’s socioeconomic status would not trigger the highest level of court scrutiny, the office says.

The letter takes no notice of the key concurring opinion by Justice Anthony M. Kennedy in the cases from Seattle and Jefferson County, Ky.

“OCR’s interpretation of the decision is inaccurate in a number of respects,” says a statement issued last week by the NAACP Legal Defense and Educational Fund, based in New York City.

Anurima Bhargava, the director of the civil rights group’s education practice, said the letter “is very limited in its reading” of the high court decision. “It’s as if Kennedy hadn’t written,” she said.

The court ruled 5-4 in June of last year that assignment plans in the two districts that and sometimes relied on race-based assignments to achieve diversity in individual schools, violated the equal-protection clause of the 14th Amendment.

But Justice Kennedy wrote that while those districts used race in an unconstitutional manner, it would be permissible for districts to take race into account under certain circumstances, such as when choosing sites for new schools, drawing attendance zones based on neighborhood demographics, or allocating resources for special programs. (See Education Week's story here.)

The NAACP LDF statement said that in contrast to the Education Department’s interpretation, “there is no requirement in Parents Involved that school districts only use race-neutral means to promote the compelling interests in diversity and avoding racial isolation in their schools.”

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A federal judge has upheld the discipline of a Pennsylvania 8th grader who created a fake MySpace profile of her principal depicting him as a sex addict and a pedophile.

The student, identified in court papers as J.S., and her parents challenged a 10-day suspension, arguing that the fake profile was created out of school in 2007 and was a non-threatening parody deserving of protection as free speech under the First Amendment.

Judge James M. Munley of U.S. District Court in Scranton, Pa., disagreed in a Sept. 11 decision. In granting the summary judgment motion in favor of the Blue Mountain school district, the judge noted that the fake profile used vulgar and lewd language such as "bitch," "tight ass," and "dick head."

"The speech does not make any type of political statement," Judge Munley said. "It is merely an attack on the school’s principal. It makes him out to be a pedophile and sex addict."

The judge also rejected the student's arguments that the fake profile was beyond the reach of school discipline because it was created off campus. He noted that someone brought a paper copy of the profile into school, and the creation of the profile had caused a buzz among students. Also, J.S. had copied a photo of the principal from the school district's Web site for use on the fake MySpace profile, the judge noted.

Judge Munley noted that the line between on-campus and off-campus speech is increasingly blurred with the ability of students to access the Internet both at home and at school, and on school computers and their own devices such as cellphones.

"As technology allows such access, it requires school administrators to be more concerned about speech created off campus--which almost inevitably leaks onto campus--than they would have been in years past," the judge said.

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A federal district judge has issued a ruling suggesting that a California teacher has a right to display banners in his public school classroom with such slogans as "In God We Trust," "One Nation Under God," and "God Bless America."

Judge Roger T. Benitez of U.S. District Court for the Southern District of California rejected a motion by the Poway Unified School District and other defendants to dismiss a lawsuit filed by the teacher, Bradley Johnson.

Johnson, who has hung some of the banners for as long as 25 years in his classroom at Westview High School, was told by his principal in 2007 to remove the banners because they conveyed "a Judeo-Christian viewpoint," according to court papers. The teacher sued on First Amendment free speech grounds.

Judge Benitez held in the Sept. 4 opinion that the Poway school district had created a limited open forum at the school in which teachers had a right of free speech. The district has permitted other teachers to display a wide variety of messages on their classroom walls, including posters with Buddhist and Islamic messages, and Tibetan prayer flags, the judge noted.

The judge said he did not view Johnson's banners as communicating a religious Judeo-Christian message.

"Rather, the banners communicate fundamental political messages and celebrate important American shared historical experiences," the judge said.

The court rejected the school district's arguments that Johnson's speech could be regulated because he was a government employee and the speech was part of his duties, and an argument that the banners were curricular in nature and the district has the right to control the curriculum.

The Thomas More Law Center, which is representing Johnson, has a picture of the teacher and his banners on its Web site, and has this press release about the case.

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The Federalist Society is sponsoring a panel discussion later this month on the Jefferson County, Ky., school district's latest effort to maintain racial diversity in its schools.

The discussion is Sept. 25 from 12 P.M. to 1:30 P.M. at Vincenzo's in Louisville, and features these speakers:

Anurima Bhargava of the NAACP Legal Defense and Educational Fund
Roger Clegg of the Center for Equal Opportunity
Ted Gordon, the lawyer who represented plaintiffs who challenged the district's previous race-conscious student assignment policy
Byron Leet, a lawyer representing the Jefferson County school district

The moderator is Brian Fitzpatrick, a professor at the Vanderbilt University law school.

The district adopted an assignment plan that uses a variety of other factors other than the race of the student to assign that student to school, which I blogged about here and here.

The new plan is a response to the U.S. Supreme Court ruling in Parents Involved in Community Schools v. Seattle School District , which struck down the race-based student assignment policies in the Jefferson County and Seattle school districts..

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I've returned from the Republican National Convention in St. Paul, and, counting the Democratic convention in Denver, from two weeks of focus on education policy in the presidential race, so I need a fix of school law.

The one big law-related event scheduled during the Republican convention was canceled. It was a forum on the impact of the 2008 election on the future of the U.S. Supreme Court, sponsored by the Federalist Society and was to feature former Bush administration Solicitor General Ted Olson, an adviser to Sen. John McCain's campaign, and Laurence Tribe of Harvard Law School, an unpaid adviser to Sen. Barack Obama's campaign. That promised to be a lively debate, but the event was called off at the last minute. The organizers cited "complications caused by Hurricane Gustav."

In the meantime, here is the biggest school law decision from last week worth catching up with for the record:

Protest Over School Uniforms: A federal appeals court ruled that a school district's discipline against students who had worn black armbands to protest a mandatory school uniform policy violated the students' free-speech rights.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, held unanimously that the Watson Chapel school district in Arkansas violated the First Amendment rights of students who wore the black armbands. The court said the armbands worn in protest of the school uniform policy were as deserving of First Amendment protection as the black armbands worn by students protesting the Vietnam War in the landmark Supreme Court case of Tinker v. Des Moines Independent Community School District.

"Whether student speech protests national foreign policy or local school board policy is not
constitutionally significant," the 8th Circuit court said in its Sept. 2 decision in Lowry v. Watson Chapel School District.

The Arkansas Democrat-Gazette reported on the decision here.

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