February 2010 Archives

A case granted review this week by the U.S. Supreme Court has implications for school districts in lawsuits alleging violations of the constitutional rights of students or district employees.

The justices agreed to decide whether plaintiffs suing local governmental agencies, such as cities, counties, and school districts, must show that a constitutional violation was the result of a policy, custom, or practice of the agency even when they are merely seeking a court order to end the violation, as opposed to monetary damages.

In a 1978 decision, Monell v. New York City Department of Social Services, the Supreme Court removed local governments' complete immunity from suits under a federal civil rights law known as Section 1983. That law allows suits for damages when government authority is used to deny a person's federal constitutional or statutory rights.

In Monell, the high court ruled that cities, counties, and school districts could not be held liable merely because they employed someone who violated a person's civil rights. But local governments could be liable if the deprivation of rights was tied to an official policy or custom of the agency.

The federal courts of appeals are divided, however, about whether a civil rights suit merely seeking declaratory relief, such as a court order, requires a showing that the challenged violation was the result of a policy or custom.

The Supreme Court granted review on Monday in County of Los Angeles v. Humphries (Case No. 09-350), which stems from a lawsuit brought by a California couple who were falsely accused of child abuse by their rebellious 15-year-old daughter and ended up on the state's child-abuse index.

In what a lower court called a "parents' nightmare," Craig and Wendy Humphries found that there was no procedure for removing their names from the index, despite a court declaration that they were "factually innocent" of the abuse charges. The Humphries sued Los Angeles County and its sheriff, as well as the state, alleging a violation of their 14th Amendment right to due process of law. Among the difficulties the couple face, court papers say, is that Wendy Humphries is a special education teacher and her inclusion on the child-abuse index threatens her ability to remain licensed as a teacher.

Their suit sought damages as well as a judicial order to remove their names from the index and a finding that the state's policies regarding the index were unconstitutional because they provided people with no means to challenge an unfair listing.

A federal district court largely ruled against the Humphries, but a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, held last year that the parents' due-process rights were violated. It said the Los Angeles County Sheriff's Department was potentially liable under Monell for not adopting its own procedure for the falsely accused to remove their names from the child-abuse index.

The county's appeal to the Supreme Court noted that several federal appeals courts have applied Monell's policy or custom requirement to non-damages claims. But the 9th Circuit has a line of cases, including the one involving the Humphries, that exempts such non-damages claims from the rule.

"The result is an end-run around this court's repeated holdings that a public entity may only be held responsible for inflicting a constitutional injury where the conduct at issue was the result of a custom, policy or practice fairly attributable to the public entity," the county's appeal said.

Perry A. Zirkel, a professor of law and education at Lehigh University in Bethlehem, Pa., said in an interview that while the Monell issue is complicated, the new case is potentially significant for school districts. Districts are often sued in addition to school or district administrators over alleged constitutional violations. Districts are often able to argue at an early stage that a challenged action was due to an overzealous principal or other administrator but did not reflect the district's official policies, he said.

The district will argue "that a principal did this on his or her own, and [the plaintiff] has not been able to show a policy or custom, so we're off the hook," Zirkel said.

If the Supreme Court goes along with the 9th Circuit's approach, that could expose districts to some lengthier and more costly legal battles, at least where so-called declaratory relief was the remedy being sought, he added.

The Supreme Court will hear the case during the term that begins next October.

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The U.S. Supreme Court today refused the hear the appeal of an Alabama school district in a case in which an employee successfully sued over claims that she was placed too low on the salary schedule.

Returning from their four-week, mid-winter recess, the justices declined without comment to hear the appeal of the Birmingham district in the case involving Cathy McCord-Baugh, a central-office administrator who claimed she did not receive the salary she was due as a "community school coordinator" but instead was classified at a lower rung on the salary schedule.

McCord-Baugh sued under the Equal Protection Clause of the 14th Amendment based on the "class of one" theory, meaning that the government treats an individual worse than others in similar circumstances. She won a $44,000 jury verdict in a state trial court.

The Birmingham district appealed, and while the case was pending before the Alabama Supreme Court in 2008, the U.S. Supreme Court issued its ruling in Engquist v. Oregon Department of Agriculture, which held that "class of one" equal-protection claims may not be brought by public employees.

The Alabama high court decided that it was procedurally barred from considering the school district's arguments that the class-of-one claims by public employees were barred because the district had not raised that issue earlier in the case.

In its appeal in Birmingham Board of Education v. McCord-Baugh, the district urged the justices to summarily reverse the Alabama Supreme Court on the theory that it was clear the Alabama court should have applied Engquist to the administrator's case.

Lawyers for McCord-Baugh argued in a brief that Engquist may not have truly barred all class-of-one claims in public employment and that the U.S. Supreme Court should let the permutations of that ruling percolate in the lower courts.

Separately today, the justices refused to hear the appeal of a Louisiana school district in a long-running dispute with one of its service contractors.

The Beauregard Parish school system sued Honeywell International Inc., claiming that the company promised changes to lighting, air conditioning, and automated-control systems that would save the district some $91,000 per year over a 10-year contract. The district claims in court papers that energy use actually increased in the first year after the contractor installed equipment and that the promised savings were never fully realized.

A federal district court ruled that the school district could not bring a claim under Louisiana's unfair trade practices law, and later ruled summarily for Honeywell on other claims as well. The U.S. Court of Appeals for the 5th Circuit, in New Orleans, upheld the district court. Court documents suggest that Honeywell blamed some of its subcontractors for the initial increase in energy use and contended that it met the terms of its contract. Honeywell didn't file a brief responding to the school district's Supreme Court appeal.

The justices declined without comment to hear the district's appeal in School Board of Beauregard Parish v. Honeywell International Inc. (No. 09-637).

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In the latest in a flurry of recent rulings about student speech on social-networking sites, a federal district court has ruled that a lawsuit challenging the discipline of a student for a Facebook page critical of a teacher may proceed.

The case involves Katherine Evans, who was a senior at Pembrook Pines Charter High School in Florida in 2007 when she created a group on Facebook called, "Ms. Sarah Phelps is the worst teacher I've ever met."

"To those select students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and her insane antics: Here is the place to express your feelings of hatred," Evans wrote on the page, which she created on her home computer.

Peter Bayer, the principal of Pembroke Pines High, suspended Evans for three days and removed her from her Advanced Placement classes for violating the school's rules against "cyberbullying" and "harassment" of a staff member, according to court documents.

Evans sued the principal in his individual capacity, alleging that her First Amendment free speech and 14th Amendment due process rights were violated.

In a Feb. 12 ruling in Bayer v. Evans, U.S. Magistrate Judge Barry L. Garber of Miami declined Evans's request for an injunction barring the principal from keeping the student's discipline in school records. But the judge denied qualified immunity for Bayer, holding that Evans's speech was protected under the First Amendment and that the principal should have known he was violating a clearly established right by disciplining Evans.

"Evans's speech falls under the wide umbrella of protected speech," Judge Garber said. "It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior."

The judge reviewed a host of relatively recent court decisions involving the discipline of students over Internet speech critical of teachers or administrators, including separate decisions earlier this month by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, which I blogged about here.

The judge acknowledged that "confusion certainly exists as to a number of questions" surrounding student speech on the Internet, but "this confusion cannot save Bayer when his actions do not even comport with the requirements for the regulation of on-campus speech."

There must be an indication that the speech at issue disrupted the work and discipline of the school, or will disrupt school in the future, for the discipline to be upheld, the judge said, and there was no indication in the record before him that Evans' Facebook group critical of a teacher disrupted school.

(Hat Tip to How Appealing for the case and the link to the opinion.)

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As part of its "Race and the Court" program during Black History Month, SCOTUSBlog next week has a slate of podcasts and articles examining the legacy of the Brown v. Board of Education of Topeka case striking down racial segregation in the schools.

The blog's goal with the program is "to reflect on the lasting impact the Supreme Court has had on race, both in law and in American society."

The lineup, scheduled for Feb. 15-19, is as follows:

Podcast: "The Unexpected Consequences of Brown v. Board of Education on African American Schools and Education in the South"
-David Cecelski, historian and author of Along Freedom Road: Hyde County, North Carolina, and the Fate of Black Schools in the South

Podcast on Brown v. Board of Education
-Nina Totenberg, legal affairs correspondent for National Public Radio

"The Global Impact of Brown v. Board of Education"
-Mary Dudziak, professor at the University of Southern California Gould School of Law and founder of the Legal History Blog

"What Can Brown Do For You?: The Court's Struggle Over the Meaning of Equal Protection"
-Pamela Karlan, professor at Stanford Law School

Podcast: Interview on Brown v. Board of Education and subsequent litigation over black civil rights
-Jack Greenberg, professor at Columbia Law School and former director-counsel of the NAACP Legal Defense and Education Fund

Podcast: The separate and unequal schools resulting from the Supreme Court's decisions
-Erwin Chemerinsky, dean of the University of California, Irvine School of Law

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An administrator's search of a student's car on school grounds need only meet the reasonable suspicion standard, rather than the more stringent standard of probable cause, to be constitutional, New Jersey's highest court has ruled.

The search by the assistant principal of Egg Harbor Township High School of a student's car for suspected drugs passed muster under the Fourth Amendment of the U.S. Constitution, the New Jersey Supreme Court held unanimously.

Administrators searched 18-year-old Thomas E. Best's car in May 2006 after learning that he had sold a pill to another student. The search turned up drug paraphernalia, marijuana, and several pills of the painkiller diazepam. Best was charged with various drug counts and sought to suppress the vehicle search as unconstitutional. When a trial court upheld the search, Best pleaded guilty to distribution of diazepam on a school campus but appealed the ruling on the legality of the search.

A state appellate court upheld the search, and in a Feb. 3 decision, the New Jersey Supreme Court did so as well.

"We hold that a school administrator need only satisfy the lesser reasonable grounds standard rather than the probable cause standard to search a student's vehicle parked on school property," said the unanimous opinion in State of New Jersey v. Best.

The court noted that the reasonable suspicion standard for searches by school administrators stems from its own 1983 decision in the T.L.O. case about a search of a student's purse after the student was caught smoking in the restroom. The U.S. Supreme Court reviewed and upheld the reasonableness standard in its 1985 decision in New Jersey v. T.L.O.

In the Egg Harbor case, the state high court rejected arguments from the defendant and the American Civil Liberties Union that students have a greater expectation of privacy in their cars than in their purses or lockers in the school building.

"The need for school officials to maintain safety, order, and discipline is necessary
whether school officials are addressing concerns inside the school building or outside on the school parking lot," the court said.

Most other courts that have weighed administrator searches of student cars on campus have also applied the reasonable suspicion standard, not probable cause, the court said.

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Two panels of the same federal appeals court reached seemingly opposite conclusions today about whether parodies of school principals on MySpace created by students off campus are protected by the First Amendment.

In one case, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously that a high school senior's parody profile of his principal, created on a computer at his grandmother's house, did not disrupt school and thus was protected free speech.

But in a second case, a different panel ruled 2-1 that a middle school student's MySpace parody of her principal, which depicted him as a sex addict and a pedophile, had a substantial likelihood of disrupting school, and thus its creator could be disciplined by school officials.

The first case is Layschock v. Hermitage School District, which involved high school senior Justin Layshock's MySpace parody of his principal, Eric Trosch. According to court documents, the profile played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

Layshock's profile of the principal was viewed by students at Hickory High School in Hermitage, Pa., for several days before access to MySpace from school computers was shut down. Layshock was charged with violating the high school's discipline code and suspended for 10 days, placed in an alternative education program for the rest of the school year, and barred from his graduation ceremony.

Layshock and his parents sued, alleging that school officials violated the student's free-speech rights. A federal district court ruled for Layshock on the First Amendment speech claim.

In its Feb. 4 opinion, the 3rd Circuit panel said it was uncontested that the parody MySpace page did not substantially disrupt school, and that Layschock was disciplined solely for creating it.

"We have found no authority that would support punishment for creating such a profile unless it results in foreseeable and substantial disruption of school," the court said.

The second decision is J.S. v. Blue Mountain School District. In that case, the fake principal profile was created by a 14-year-old student identified in court papers as J.S and another student. The profile identified interests such as "being a tight ass," "spending time with my child (who looks like a gorilla)," and "hitting on students and their parents." The profile contained this statement (among other more vulgar remarks):

"For those who want to be my friend, and aren't in my school
I love children, sex (any kind), dogs, long walks on the
beach, tv, being a dick head, and last but not least my
darling wife who looks like a man (who satisfies my needs)"

This fake profile was noticed by the students of Blue Mountain Middle School in Orwigsburg, Pa., and soon Principal James McGonigle learned who had produced it. He suspended J.S. and the second student for 10 days (as well as threatening other, personal legal action.)

The school district said the profile disrupted school in several ways, including that two teachers had to quiet their classes when they were talking about it, and some students welcomed the two offenders back from their suspensions by decorating their lockers to congratulate them on their actions.

J.S.'s parents sued the school district, alleging that the discipline of their daughter violated her First Amendment free-speech rights, among other claims. A federal district court upheld the discipline, and in its opinion today, so did the 3rd Circuit panel. (Again, one that was made up of different judges from the one in the first case.)

The majority on the panel said the actual disruptions identified by the school district—the classroom discussions and the locker decorations—did not rise to the level of being "substantial." But the fake profiles' potential to continue to cause disruption was "reasonably foreseeable," the court said.

"It is apparent that the underlying cause for McGonigle's concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him," the majority said. "The girls embarrassed, belittled, and possibly defamed McGonigle. They
created the profile not as a personal, private, or anonymous expression of frustration or anger, but as a public means of humiliating McGonigle before those who knew him in the
context of his role as middle school principal."

"We conclude that the Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language," the majority said.

The dissenting judge, Michael A. Chagares, said that "neither the Supreme Court nor this court has ever allowed schools to punish students for off-campus speech that is not school-sponsored and that caused no substantial disruption at school." The majority's holding "significantly broadens school districts' authority over student speech; I believe that this holding vests school officials with dangerously overbroad censorship discretion."

(Hat Tip to How Appealing on these decisions.)

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A federal appeals court has revived the lawsuit of a teaching applicant who claimed national-origin discrimination because she was passed over for a job teaching Russian.

A federal district court in 2008 rejected the bias suit filed against the Virginia Beach, Va., school district by Irina Dolgaleva, a native of Russia. The court held that because the job went to a native of Belarus, and because Russia and Belarus had both been part of the former Soviet Union, there could have been no national-origin discrimination on the school district's part.

But a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., said that considering Russia and Belarus to be the same for purposes of national origin "is of questionable accuracy."

The appeals panel noted that the federal Equal Employment Opportunity Commission has interpreted national origin broadly to cover an individual's, or his or her ancestors', place of origin, or an individual who has "the physical, cultural, or linguistic characteristics of a national-origin group."

"As a matter of ancestry, it would seem that the nations comprising the former Soviet Union are distinct," the appeals court said in its unanimous Jan. 29 opinion in Dolgaleva v. Virginia Beach City Public Schools.

Dolgaleva claims in her suit that her qualifications to teach Russian were superior to those of the Belarus native, and that the Virginia Beach school system bypassed its usual procedures in hiring the other candidate.

The appeals court said the district court improperly considered the school system's claims in dismissing Dolgaleva's suit at an early stage, and it revived her national-origin bias claim.

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