January 2009 Archives

There were some pretty big school law developments this week:

Title VII Retaliation: In a case involving a school district central office, the U.S. Supreme Court ruled that the main federal employment-discrimination law protects workers who faced retaliation for participating in an internal investigation.

Justice David H. Souter said in an opinion for seven members of the high court in Crawford v. Metropolitan Government of Nashville and Davidson County that Title VII of the Civil Rights Act of 1964 covers a school system payroll specialist who complained about crude sexual conduct by her boss during an internal investigation launched on behalf of another employee. The payroll specialist, Vicky Crawford, was dismissed from her job, which she claimed was retaliation.

Justice Souter said that Crawford's descriptions of the "louche goings-on" by her boss "would certainly qualify in the minds of reasonable jurors as resistant or antagonistic" to the boss's treatment, and thus would be covered by Title VII's anti-retaliation provision.

Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, filed a separate opinion concurring in the judgment.

I wrote about the background and oral arguments in the case in Education Week here.

Florida Pledge Law: A full federal appeals court has declined to reconsider a three-judge panel's ruling that upheld most of a Florida law requiring public school students to recite the Pledge of Allegiance each day.

In July, the panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, upheld the parts of the law requiring students to have parental permission to opt out of the daily recitations of the pledge. The panel struck down a provision that it interpreted as requiring all students to stand during the pledge, including those who were opting out with parental consent. I blogged here about the panel's decision in Frazier v. Winn.

On Jan. 26, the full 11th Circuit announced it would not reconsider the panel decision. Judge Rosemary Barkett issued a dissent from the denial, saying "the panel’s holding that the State of Florida can compel students to recite the Pledge of Allegiance in violation of their personal beliefs directly contravenes precedent that has been firmly entrenched for over 65 years, since West Virginia State Board of Education v. Barnette held that the State does not have the power to compel minor students to recite the Pledge to the flag."

Cheerleading: The Wisconsin Supreme Court has ruled that high school cheerleading is a contact sport and its participants are immune from liability for negligence under state law.

The case involved a cheerleader who sued a fellow cheerleader at Holmen High School who had failed to catch her during a stunt. The court also ruled that the Holmen Area School District was immune from the suit.

The court's ruling in Noffe v. Bakke was issued on Jan. 27, and the Chicago Tribune has this Associated Press story.

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After a long, busy weekend of inauguration events, bookended by Supreme Court news in education cases both last Friday (see my post here) and on Wednesday (see posts here, here, and here), there is still more school law news.

Immunity in Football-Practice Death: A federal appeals court ruled today that three high school football coaches had qualified immunity from a lawsuit brought over the death of a player the morning after a workout session.

The lawsuit alleges that at a voluntary workout session for the football team Rockdale County High School in Georgia in February 2007, three football coaches failed to provide enough water to keep team member Tyler Davis hydrated, and that they subjected him to rigorous conditioning drills and failed to properly attend to him even though the student collapsed during the drills.

Davis went home, but died in the early morning hours of the next day. His family sued the Rockdale County school district and various officials, including the three coaches, on the grounds that the defendants violated Davis's substantive-due-process rights under the 14th Amendment.

A federal district dismissed the suit against the district and some officials, but it denied qualified immunity to the three coaches.

In its Jan. 23 opinion in Davis v. Carter, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, ruled unanimously that the coaches were entitled to immunity.

"In this school setting case, the complaint’s allegations of deliberate indifference, without more, do not rise to the conscience-shocking level required for a constitutional violation," the court said. "While the circumstances of this case are truly unfortunate, plaintiffs’ claims are properly confined to the realm of torts."

Confederate Flag Appeal: The full U.S. Court of Appeals for the 6th Circuit, in Cincinnati, today declined to grant a rehearing of a panel's decision that upheld a Tennessee school district's prohibition against displaying the Confederate battle flag.

A three-judge panel ruled unanimously in August in Barr v. LaFon that the Blount County, Tenn., school district did not violate the First Amendment free speech rights of students when it barred the flags because it feared such displays would spark racial disruptions. I blogged about that decision here.

Today, in a lone dissent to the full 6th Circuit's refusal to rehear the case, Chief Judge Danny J. Boggs said the court majority "rather uncritically accepts the school administrators’ point of view" and that a reasonable jury could conclude that "the administrators' explanation was not based on a reasonable forecast of disruption" but on "a desire to avoid political and public controversy"$#151;an impermissible basis for restricting speech.

Illinois Moment of Silence: A federal district judge has struck down an Illinois law requiring a moment of silence in public schools as a violation of the First Amendments prohibition against government establishment of religion.

Tthe 2007 law says there "shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day."

"The plain language of the statute ... suggests an intent to force the introduction of the concept of prayer into the schools," said U.S. District Judge Robert W. Gettleman of Chicago said in his opinion in Sherman v. Township High School District 214.

The Associated Press reports here.

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The U.S. Supreme Court today made it easier for judges to grant educators, the police, and other public officials immunity from lawsuits challenging their official actions.

The court effectively overruled one of its own precedents that said judges determining whether government officials were entitled to "qualified immunity" must first decide whether a constitutional violation had even occured before turning to the immunity question.

That "order of battle," from a 2001 case known as Saucier v. Katz, sparked criticism from federal judges and municipal governments, including school districts, which argued that courts were often forced to settle thorny constitutional questions even when many cases could be disposed of more easily because the officials involved were immune from suit.

Under the high court’s precedents on qualified immunity, public school educators and certain other government officials are immune from being sued unless they violate "clearly established" constitutional or statutory rights of which a reasonable person would have known.

The principle has enormous practical consequences for such officials. If they are sued and can establish their immunity fairly early in the legal process, they are spared often lengthy and costly litigation.

The argument for retaining the Saucier procedure is that without first addressing constitutional issues, many judges would decide suits against officials on immunity grounds without advancing the development of constitutional law. Thus, in the next case, educators or police officers could again claim that the law in a particular area was not clearly established.

In a unanimous decision for the court today in Pearson v. Callahan (Case No. 07-751), Justice Samuel A. Alito Jr. said that "the Saucier procedure comes with a price" and "should not be regarded as an inflexible requirement."

"The procedure sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case," Justice Alito said.

He said lower federal court judges are in the best position to decide whether to follow the rule, and that often they will want to examine constitutional questions first.

I wrote about the oral arguments in the case here. The underlying case dealt with a challenged police search, but the justices had asked the parties to address whether the Saucier decision should be overruled. Among the interesting groups who had chimed on in that with friend-of-the-court briefs were the Texas Association of School Boards, the American Civil Liberties Union, and a group of 31 states.

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The U.S. Supreme Court today declined to hear the appeals of several families in a challenge to Pennsylvania's record-keeping requirements for home-schooled children.

The justices declined without comment to review an August ruling by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, that the state's reporting requirements do not violate the families' First Amendment right of free exercise of religion.

Under state law, parents who home school their children must provide instruction for a minimum number of days and hours in certain subjects and must submit a portfolio of teaching logs and the children’s work product for review by the local school district. The families had sought exemptions to the reporting requirements, saying they interfered with their sincerely held Christian religious beliefs and parental control of their children's education.

In its Aug. 21 opinion, the 3rd Circuit court said parents have a general right to control the education of their children, but they "do not have a constitutional right to avoid reasonable state regulation of their children’s education. [The state law's] reporting and superintendent-review requirements ensure children taught in home education programs demonstrate progress in the educational program."

The families' Supreme Court appeal was Combs v. Homer-Center School District (Case No. 08-664).

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The U.S. Supreme Court ruled unanimously today that Title IX does not bar victims of sex discrimination in schools from pursuing claims under an older federal civil rights law.

The decision in Fitzgerald v. Barnstable School Committee (Case No. 07-1125) is a victory for parents of a Massachusetts student who as a kindergartner was subject to sexual harassment by an older student on her bus.

The parents can now pursue claims under the federal statute known as Section 1983, a Reconstruction-era law that allows plaintiffs to sue any individual who violates their civil rights under color of law. In some cases, the statute may offer wider protections than Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded education programs.

"We conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or as a substitute for Section 1983 suits as a means of enforcing constitutional rights," Justice Samuel A. Alito Jr. wrote for the court today.

My coverage of the oral arguments in this case is here. I'll have more on this decision later on Education Week's Web site, and I'll provide a link here.

Update: My fuller story on edweek.org is now available here.

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The U.S. Supreme Court today agreed to add two more education cases to its docket for this term—one involving special education and the other stemming from a lawsuit over the strip-search of a middle school student by school officials looking for over-the-counter or prescription drugs.

In the special education case, the justices will return to an issue they deadlocked over in their last term: Whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.

With Justice Anthony M. Kennedy recusing himself, the other justices tied 4-4 in a case in 2007 over whether the federal Individuals with Disabilities Education Act permitted a New York City father to win reimbursement of private school tuition for a child with disabilities who had never even enrolled in the city’s school system. The tie in Board of Education of New York City v. Tom F. upheld the tuition reimbursement in that case, but set no national precedent.

The new case, which presumably does not present any barrier to Justice Kennedy’s participation, is from the Forest Grove school district in Oregon, which is appealing a federal appeals court ruling in favor of parents who sent their son to a private school for children with behavioral and emotional problems some two years after the school district’s evaluation had determined the boy was not eligible for special education.

The district re-evaluated the student, and determined that he had attention deficit hyperactivity disorder, but that it wasn’t affecting his educational progress. The parents appealed to a hearing officer, who ruled they should be reimbursed for the private residential program where they had enrolled their son, for which monthly tuition was more than $5,000.

A federal district court reversed the hearing officer, but a panel of the U.S. Court of Appeals for the 9th Circuit held 2-1 last April that the parents were entitled to reimbursement. The majority said that language in the IDEA that such tuition reimbursements for such unilateral private school placements were available only to students “who previously received special education and related services” did not “create a categorical bar to recovery of private school reimbursement for all other students.”

The district’s appeal in Forest Grove School District v. T.A. (Case No. 08-305) was joined in a friend-of-the-court brief filed by the National School Boards Association, the American Association of School Administrators, and the National Association of State Directors of Special Education, which argued that the 9th Circuit court’s decision would increase the costs of special education by encouraging parents to avoid the process of working with a school district to develop and individualized education program, or IEP, for a student with disabilities.

“The 9th Circuit’s decision allows those parents to treat the IEP process as a potential lottery ticket to a government-funded private school education,” the school groups said.

The parents' brief in opposition is here.

Strip-Search Case

The strip-search case has also attracted attention in education law circles.
In July, the 9th Circuit court ruled that a strip search of an 8th grader by school authorities looking for Ibuprofen pills violated the student’s rights under the Fourth Amendment.

An panel of the court ruled 8-3 on July 11 that officials at an Arizona middle school “acted contrary to all reason and common sense as they trampled over” the privacy interests of student Savana Redding. And by a vote of 6-5, the panel held that the assistant principal who ordered the strip search was not entitled to qualified immunity from liability in the student’s lawsuit.

Redding was searched in 2003 as part of an investigation into the possession of over-the-counter medications by students at Safford Middle School in the Safford school district. After receiving a report that Redding, who was 13 at the time, had been distributing prescription-strength Ibuprofen pills to fellow students, school officials searched the girl’s backpack, then asked a female administrative assistant to search the girl’s clothing. Redding had to remove her pants, lift the waist band of her underpants, and lift her shirt and pull out her bra band, according to court papers. No contraband was found.

Ms. Redding and her parents challenged the school officials’ actions as a violation of her Fourth Amendment right against unreasonable searches. They lost before a federal district court and before an initial three-judge panel of the 9th Circuit court. But the 9th Circuit granted a review by a larger panel of judges.

In that decision last July, the 9th Circuit majority said the strip-search was “excessively intrusive,” especially considering that school officials were relying on an uncorroborated tip from another student who had been caught in possession of the pills.

The court further said that it should have been clear to the school officials under the U.S. Supreme Court’s 1985 decision in New Jersey v. T.L.O. that the strip search was unreasonable, and thus an assistant principal who ordered the search did not merit qualified immunity.

In T.L.O., the Supreme Court upheld the search of a student’s purse for contraband and held that school searches are justified by a “reasonable suspicion” that laws or school rules were violated. Under the ruling, schools must show that a search was reasonable at its inception and was reasonable in scope.

“The guidance provided by T.L.O. should have been clear to the school officials, who undertook the professional obligation to balance properly the order of the school with the individual liberties of the students who enter the school,” the court said.

The school district’s appeal of that decision in Safford Unified School District v. Redding (No. 08-479) was also joined by national school groups, in this case the NSBA and the AASA, which called for the Supreme Court to provide greater guidance to school administrators about the legality of student searches.

The 9th Circuit court’s ruling “unfairly places school officials in the position of being sued and held personally responsible for good faith decisions intended to protect the health and safety of students entrusted to their care and tutelage,” the education groups said in their friend-of-the-court brief.

The Redding family's brief in opposition is here.

The justices indicated that both cases will be heard in their April argument session, and decisions are expected by the end of the court’s term in June.

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A bit of a mix today.

Religion in Public Schools: A federal district judge has ordered a Florida school district to stop promoting religion by sponsoring prayers at graduation ceremonies and other practices.

U.S. District Judge M. Casey Rodgers of Pensacola, Fla., issued a preliminary injunction on Jan. 9 ordering the Santa Rosa County school district to end practices such as sponsoring prayers at school-sponsored events, sponsoring off-campus baccalaureate services, and permitting teachers and other school personnel to promote their personal religious beliefs in the classroom or at other school events.

The school district in December had admitted liability in a lawsuit brought by the American Civil Liberities Union of Florida on behalf of two students at Pace High School.

The judge's order is here, and the ACLU's news release is here.

Legal Counsel for Truant Students: A Washington state appeals court has ruled that children facing civil truancy proceedings have a due-process right to be represented by a lawyer.

The decision came in the case of a 13-year-old student in the Bellevue, Wash., school district who faced a truancy petition in juvenile court for chronically missing school. The student had no legal representation at her initial truancy hearing, which led to an order for the student to return to school. When that order was violated, the student was ordered to two days of "work crew" and a threat of electronic home monitoring, although it appears from court papers that those sanctions were never carried out.

In its Jan. 12 decision, a three-judge panel of the Washington Court of Appeals ruled unanimously that children must have legal counsel at an initial truancy hearing.

"The initial truancy hearing provides no procedural safeguards to protect the child’s rights, and it is undeniable that the child cannot be expected to protect them herself," said the appeals court in Bellevue School District v. E.S. "Errors in the proceedings are therefore likely, and the risks to the child’s liberty interests are great."

The opinion does not discuss whether other states require legal representation for children in truancy, and I don't recall any other recent decisions in this area of the law.

Bus Drivers' Union: A federal appeals court has sided against a private bus company in a dispute over who should represent school bus drivers and other personnel after a Michigan school district outsourced its student transporation services to the company.

The U.S. Court of Appeals for the District of Columbia Circuit upheld a finding by the National Labor Relations Board that Dean Transportation Inc. violated federal labor law by refusing to recognize and bargain with the union that had represented the transportation employees when they were employed by the Grand Rapids, Mich., school district. Instead, the company sought to recognize them as part of a separate union that represented its drivers at its other facilities.

In its Jan. 9 decision in Dean Transportation Inc. v. National Labor Relations Board, the appeals court held that the unit represented by the Grand Rapids Educational Support Association, an affiliate of the National Education Association, was the appropriate bargaining unit with which the company should negotiate.

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The U.S. Supreme Court today declined the appeals of an assistant principal and a sheriff's department stemming from a lawsuit that challenged their handling of a graphic abortion display near a California middle school.

The justices declined without comment to review a federal appeals court ruling that the assistant principal and sheriff's deputies violated the First Amendment rights of members of an anti-abortion group by ordering them to stop driving a truck displaying large, graphic images of aborted fetuses around Dodson Middle School in Rancho Palos Verdes, Calif.

The suit stems from a March 24, 2003, incident when a truck sponsored by the anti-abortion group, the Center for Bioethical Reform, targeted the middle school just as students were arriving for the day. According to the court papers, some students were upset by the graphic images of fetuses, a group of boys threatened to throw rocks at the truck, and other students talked about it in class.

School officials called the Los Angeles County sheriff's department, which dispatched several officers. Art Roberts, the assistant principal of Dodson Middle, joined the officers in telling the anti-abortion group members that they would have to leave the area adjoining the school, court papers say. They cited a California law that bars disruptions on or near school campuses.

A federal district court dismissed the suit, but in the July 2 ruling, the U.S. Court of Appeals for the 9th Circuit court revived it. The court said that because the government officials restricted the group's speech based on the targeted listener's reaction to it, that amounted to allowing a "heckler's veto" in violation of the First Amendment.

The court held that because of uncertainty in applying the state statute to this situation, the assisant principal and the sheriff's deputies were entitled to qualified immunity from any personal liability in the case. But it ordered the district court to reconsider the anti-abortion group's request for injunctive relief.

In the appeal on behalf of the assistant principal in Roberts v. Center for Bioethical Reform (Case No. 08-431), lawyers argued that the 9th Circuit's decision "threatens to open a Pandora's Box of difficulties for public school districts ... throughout the nation" because it bars "time, place, and manner" restrictions on such graphic anti-abortion displays.

In a brief urging the justices not to hear the case, lawyers for the Center for Bioethical Reform say the group was "engaging in peaceful, silent, and non-obstructive political speech" that did not cause any material disruptions at the middle school.

The Supreme Court's refusal to hear the case is not a ruling on the merits of the appeals.

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The U.S. Supreme Court today agreed to step into a long-running lawsuit in Arizona over funding for services to English-language learners.

The justices accepted appeals from legislative leaders and the state superintendent of lower-court rulings that Arizona was not adequately funding ELL programs under federal law. A federal judge has ordered the state legislature to increase funding for such programs or else face fines of as much as $2 million per day.

“Arizona needs this court’s help to return control over the funding of Arizona’s school programs to here it rightly belongs—out of the hands of a single federal district court judge and back into the hands of Arizona’s democratically accountable officials,” said an appeal written in part by Kenneth W. Starr, a former U.S. solicitor general and independent counsel, on behalf of the legislative leaders.

A separate appeal on behalf of Thomas C. Horne, the state’s superintendent of public instruction, argues that it was the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that went too far last year when it “mandated special statewide funding legislation to benefit ELL” students.

In a twist that shows the complexity of the Arizona case, the state’s attorney general had filed a brief urging the Supreme Court not to review the case, saying Arizona’s unique situation made the case unsuitable for a national precedent on the effects of two federal laws on instruction for English-language learners. Gov. Janet Napolitano, a Democrat who is President-elect Barack Obama choice to become secretary of the Department of Homeland Security, battled the legislature and sought more funding for ELL students as the case wore on.

One of those laws is the Equal Educational Opportunities Act of 1974, which requires states to “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.”

In a class action brought in 1992 by families in Nogales, Ariz., a federal district judge in Arizona ruled in 2000 that the state violated the “appropriate action” language of the EEOA by failing to provide adequate funding for its ELL instructional methods.

The district judge ruled in 2007 that a law passed by the state legislature which increased ELL funding and made other changes to the state’s program did not go far enough. The 9th Circuit court upheld the decision.

In their separate appeals, the state legislative leaders and Mr. Horne argue that the federal No Child Left Behind Act, with its extensive requirements for the states on English-language learners, should trump the Equal Educational Opportunity Act.

“It is both unfair and irrational for the federal government, on one hand, to approve Arizona’s ELL programs as effective under NCLB, but, on the other hand, to allow the federal judiciary to rule that Arizona has failed to take ‘appropriate action’ to assure effective ELL programs under [the] EEOA,” says the brief filed on behalf of Mr. Horne.

The Washington Legal Foundation, a conservative legal group in the nation’s capital, filed a friend-of-the-court brief urging the justices to take up the case, arguing that the courts’ “intrusions” into the state’s policies trampled “bedrock principles of separation of power and federalism.”

But a brief on behalf of the original plaintiffs, urging the justices not to accept the case, said “the Arizona legislature has spent the past eight years resisting compliance with the district court’s lawful order. In prodding the state toward compliance, the district court has repeatedly shown both deference and patience.”

The Supreme Court ordered an expedited briefing schedule for the appeals, Horne v. Flores and Speaker of the Arizona House of Representatives v. Flores (Cases No. 08-289 and 08-294), indicating that the justices likely intend to hear arguments by April and decide the case by the end of their current term in late June.

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Today is the anniversary of the launch of The School Law Blog.

It was an auspicious day on Jan. 7, 2008, because a federal appeals court issued a major ruling about the No Child Behind Act that day, just the kind of big school law news I was hoping for. My blog post about the NCLB ruling from that day is here, and the latest post on that case, which was reheard en banc last month by the U.S. Court of Appeals for the 6th Circuit, is here.

Meanwhile, Education Week is releasing its annual Quality Counts report today, with a focus this year on English-language learners. I wrote this piece about the legal landscape for bilingual education, English-language learners, and undocumented immigrants.

Now, it's on to Year Two for the blog.

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A federal appeals court today revived a Title IX lawsuit alleging that administrators of a Michigan school district were deliberately indifferent to a years-long pattern of sexual harassment against a male student by his peers.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 to restore the suit against the Hudson, Mich., area school district and Superintendent Kathy Malnar, overturning a summary judgment in their favor by a federal district court.

The majority in Patterson v. Hudson Area Schools said a jury should be given the chance to decide whether the district's response to the pattern of harassment, which mostly involved verbal reprimands of the harassers, was deliberately indifferent and thus could make the district liable under Title IX, which prohibits sex discrimination in federally funded schools.

"Given that Hudson knew that its methods were ineffective, but did not change those methods, a reasonable jury certainly could conclude that at some point during the period of harassment, the school district’s standard and ineffective response to the known harassment became clearly unreasonable,” the majority opinion says.

The lawsuit contends that beginning in the 7th grade, a boy identified as DP was called "queer," "fag," "pig" and other names by some of his fellow students. The boy's locker and school papers were defaced. School officials would reprimand the harassers, only to have other students continue to torment DP, the family's lawsuit said.

The harassment culminated in high school, when DP was assaulted by another male student, who rubbed his sexual organs against DP in a locker room. That student was expelled and later pleaded guilty to a criminal charge.

The dissenting judge on the 6th Circuit panel said schools cannot be liable under Title IX for failing to be "purged of all offensive behavior and be completely harassment free."

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The holidays are over and it's time to catch up with some school law developments of recent days:

In-State Tuition for Immigrants: The California Supreme Court will take up a case involving a challenge to a state law that permits undocumented immigrants to pay in-state tuition rates at public colleges and universities, the Los Angeles Times reports.

The challenge was brought by out-of-state students who pay more than triple what in-state students pay at University of California and California State campuses, the paper reports.

Under the 2001 state law, "illegal immigrant students qualify for in-state rates if they attended a California high school for three years, graduated here and signed an affidavit saying they will apply for permanent residency as soon as they are eligible," the Times says.

After some digging, I found the ruling below that will be reviewed by the state high court. It is this Sept. 15, 2008, decision by the California Court of Appeal in Martinez v. Regents of the University of California, which revived the lawsuit by the out-of-state residents.

Protection for High School Journalism Advisers: A new law has taken effect in California that prohibits school administrators from retaliating against advisers who seek to protect student press freedoms, the Los Angeles Times reports.

The Times quotes the legal counsel of the California Newspaper Publishers Association as saying that in the past three years, 15 high school journalism advisers have lost their jobs or been reassigned by administrators who perceived stories in student publications as critical of their schools.

Teacher Drug Testing: A federal district judge has issued a temporary injunction barring a West Virginia school district from implementing a program of random drug-testing of teachers and other school employees.

U.S. District Judge Joseph R. Goodwin said the drug-testing program of the Kanawha County school system was likely in violation of the 4th Amendment's prohibition against unreasonable searches, according to stories in the Charleston Gazette here and the Associated Press here. (If Judge Goodwin issued a written opinion, I can't seem to find it online.)

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