February 2011 Archives

The U.S. Supreme Court today declined to hear the appeal of a high school student who claimed that his free speech rights were infringed when administrators refused to let him return to school to address allegations that he had made a racially insensitive comment about another student.

Students at East Hampton High School, in New York state, believed that Daniel DeFabio, a 10th-grader at the school in the spring of 2004, had made the remark about a Hispanic student who had died in a motorcycle accident a few days earlier, court papers say. The purported comment was "one down, forty thousand to go."

Facing threats from other students, DeFabio was initially kept out of school for his own safety. The superintendent of the East Hampton Union Free School District later concluded that the student had made the comment. DeFabio was suspended for the rest of the school year and was not allowed to distribute a statement through school channels attesting to his innocence. He maintained that he did not originate the comment but had repeated it in the vein of "you would not believe the terrible thing I heard in the hallway," court papers say.

New York State's commissioner of education later overturned the superintendent's finding and annulled DeFabio's suspension. But the student never returned to East Hampton High. DeFabio and his mother sued the school district and officials, alleging that their actions violated his First Amendment free speech rights.

The DeFabios lost in both a federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City. Among other issues decided in favor of the defendants, the court said school officials had qualified immunity for their actions.

"Under the circumstances, ... it was reasonable for the [school officials] to forecast substantial disruption of or material interference with school activities were Daniel permitted to return to school to speak with his classmates about his version of what transpired," the 2nd Circuit said in its Oct. 13 opinion.

The Supreme Court declined without comment to hear the student's appeal in DeFabio v. East Hampton Union Free School District (Case No. 10-919).

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A Tennessee school district's program of random drug testing of its teachers was constitutionally flawed, a federal district court has ruled.

The Smith County school district enacted a drug-testing policy for school employees in 2004, after two incidents in which teachers were charged with having drug paraphernalia in their homes. The policy provided for urinalysis drug testing during hiring and in cases based on reasonable suspicion of illegal drug use. It was amended in 2007 to establish random testing of at least 10 percent of employees each year.

The policy was challenged by several teachers and the Smith County Education Association as an unreasonable search under the Fourth Amendment. U.S. District Judge Todd J. Campbell of Cookeville, Tenn., held a trial over the policy.

In a Feb. 14. decision, he struck down the Smith County policy, but he said he was not ruling that random drug testing of teachers was by itself unconstitutional.

"Having carefully considered the expert testimony and all the evidence introduced at trial, the court finds that random drug testing clearly serves as a deterrent to illegal drug use," Judge Campbell said. "However, the 2007 Policy ... lacks clarity and does not give teachers reasonable and adequate notice of what is being tested. The policy is also implemented in such a way that it unreasonably intrudes on the privacy of teachers."

The judge noted that in a 1998 case, Knox County Education Association v. Knox County Board of Education, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld a drug-testing program for teachers. But the program in that case did not include random testing. (Tennessee is part of the 6th Circuit.)

The judge said the Smith County school board's policies have not provided adequate notice to school employees of what drugs will be tested for in the program, and language that "any detectable amount" of illegal drugs would violate the policy was problematic. He also said that the district's procedures for collecting urine samples raised constitutional issues.

Judge Campbell added that if the district "cured" its implementation issues, the random-testing policy would likely be in compliance with the Fourth Amendment.

(Hat Tip to Legal Clips.)

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In a busy day for education-related cases at the U.S. Supreme Court, the justices on Monday declined to hear the state of Connecticut's challenge to the federal No Child Left Behind Act.

Meanwhile, in a case being watched closely in the autism community, the court ruled 6-2 that a federal law preempts all design defect claims brought by plaintiffs seeking compensation for injuries caused by a vaccine's side effects.

And the court ruled 7-2 that a railroad may challenge sales and use taxes charged by the state of Alabama on diesel fuel used by railroads but not charged on motor and water carriers. The tax program was defended by the state in the Supreme Court as critical to the funding of its education system.

In the NCLB case, the justices declined without comment to take up the state's lawsuit alleging that the federal government could not require states to spend their own money on the federal law's requirements because of the statute's language barring unfunded mandates. The U.S. Department of Education had refused to grant Connecticut a waiver of annual testing requirements. The state claimed it had spent at least $41.6 million of its own money from 2002 to 2008 to comply with the law.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit decided last year that the central claim of the case was premature because the Education Department had not taken enforcement action against the state.

"The 2nd Circuit's decision defies the law and common sense," then Connecticut Attorney General Richard Blumenthal argued in the Supreme Court appeal filed in October. Blumenthal, a Democrat, was elected to the U.S. Senate last fall.

The Obama administration defended the law's requirements before the Supreme Court and said Connecticut never raised its funding claims when it sought waivers from the testing requirements. The case was State of Connecticut v. Duncan (No. 10-489).

In June 2010, the high court declined to hear an appeal stemming from the National Education Association's similar challenge to NCLB.

In the vaccine case, Bruesewitz v. Wyeth Inc. (No. 09-152), the court had to decide whether a provision of the National Childhood Vaccine Injury Act of 1986 precludes liability for certain claims against vaccine manufacturers even if the vaccine's side effects were avoidable.

The case was brought on behalf of Hannah Bruesewitz, now 19, who suffered seizures and has had developmental disabilities since having a bad reaction to a diphtheria-tetanus-pertussis (DTP) vaccine known as Tri-Immunol as an infant in 1992.

Lawyers for the family contend that the vaccine, developed in the 1940s, had long been superseded by a more modern design, but that the drug manufacturer declined to change its DTP vaccine's design because it viewed the economic costs as outweighing any potential gain in market share. Wyeth, now part of Pfizer Inc., withdrew Tri-Immunol from the market in 1998.

Writing for the court today, Justice Antonin Scalia said Congress set up a special vaccine court to compensate injured children without driving vaccine makers from the market and sparing them the costs of defending parents' lawsuits.

"Vaccine manufacturers fund from their sales an informal, efficient compensation program for vaccine injuries," Scalia said. "In exchange they avoid costly tort litigation and the occasional disproportionate jury verdict."

Justice Sonia Sotomayor wrote a dissent joined by Justice Ruth Bader Ginsburg. She said the majority's decision "leaves a regulatory vacuum in which no one ensures that vaccine manufacturers adequately take account of scientific and technological advancements when designing or distributing their products."

In the railroad tax case, CSX Transportation Inc. v. Alabama Department of Revenue (No. 09-520), Alabama education groups filed a friend-of-the-court brief on the side of the state, arguing that the tax on railroads is critical because it helps finance the state's Education Trust Fund.

In the majority opinion, Justice Elena Kagan said CSX could challenge Alabama's discriminatory tax treatment under a 1976 federal law, the Railroad Revitalization and Regulatory Reform Act. The court did not address whether the railroad should prevail in the challenge. It sent the case back to lower courts for further proceedings.

Justices Ginsburg and Clarence Thomas dissented.

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Times are tough, a California appellate court says, and the judiciary cannot compel state lawmakers to come up with nearly $1 billion to reimburse unfunded education mandates imposed on school districts.

But in a partial victory for school districts, a panel of the California Court of Appeal said they could seek to temporarily get out of mandates not fully funded by the state.

The mid-level state appellate court ruled in a lawsuit brought by the California School Boards Association, the San Diego Unified School District, the San Jose Unified School District, and others. The plaintiffs say they are owed more than $900 million over a several-year period for costs associated with state-mandated programs such as AIDS education, pupil health screening, criminal background checks, and teacher incentives.

"Currently our state is experiencing an extreme budget crisis with a budget deficit estimated to be more than $20 billion," the appellate court said in its Feb. 9 opinion in California School Boards Association v. State of California. "Any money a court would direct to the school districts would reduce funds available for other obligations and implicate funding priorities and policy-making decisions. These decisions are for the legislature."

Because a state commission identified a number of education programs as mandates, and the California Constitution requires that such mandates be funded, state lawmakers have sought since 2002 to appropriate as little as $1,000 statewide for each program. The state claims it is deferring full payment of the costs until some later date, a practice identified in court papers as the "Education Credit Card."

The court rejected the state's arguments that such partial payments mean the mandates don't qualify as "unfunded."

"By attempting to pay for the new programs with a 'credit card' with no fixed date for full payment, the State is shifting the actual costs of these mandates to the local school districts," the court said.

Also, the court ruled that school districts can seek relief from the unfunded mandates in separate judicial proceedings and receive a declaration that they need not fulfill the mandate for one year at a time.

But on the big-ticket item sought by the school districts, reimbursement of more than $900 million from the state, the appellate court said no.

"An order requiring the State to pay its claimed $900 million mandate debt from existing funds would improperly elevate the judiciary above its coequal brethren, upset the delicate system of checks and balances, and stand the separation of powers clause on its head," the court said.

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A federal statute meant to give teachers and school administrators protection from legal liability over their efforts to maintain safe and orderly schools has been upheld against a constitutional challenge.

The Missouri Supreme Court, ruling in a lawsuit in which a student who had been slashed by another student sought to hold a school superintendent liable, held that the federal law was a valid exercise of Congress' powers under the spending clause in Article I of the Constitution.

The court upheld the Paul D. Coverdell Teacher Protection Act, which was passed as part of the No Child Left Behind Act of 2001. The law aims to protect education professionals from being sued over efforts to undertake "reasonable actions to maintain order, discipline, and an appropriate educational environment." The law is named for the U.S. senator from Georgia who championed it.

Missouri's highest court ruled this week in a suit brought by Craig Dydell, who was a student at Central High School in Kansas City, Mo., in 2005 when he was slashed in the neck by another student in the cafeteria. Dydell survived the attack, and he sued Kansas City Schools Superintendent Bernard Taylor for negligence over the incident.

Dydell claimed that the superintendent failed to disclose to teachers that the other student had the potential for violence because the student had been expelled from a Kansas City charter school for attempting to bring a knife to school.

Taylor raised the Coverdell Act as a defense, which prompted Dydell to challenge the federal law as unconstitutional. Dydell argued that Congress lacked the authority under the spending clause to coerce the states into recognizing legal immunity for teachers and administrators over efforts to keep schools safe.

A state trial court rejected Dydell's arguments, and in its Feb. 8 decision in Dydell v. Taylor, the Missouri Supreme Court unanimously affirmed.

"The Coverdell Act's requirement that Missouri provide ... immunity to teachers in return for federal education funds is hardly novel," says the opinion by Judge Laura Denvir Stith. "It is an example of Congress' traditional use of its spending power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives."

The court noted that under the federal law, states may nullify its application merely by passing legislation saying so, without the loss of any federal education funds.

"There is no stick at all, only carrots," the opinion says. "There is no coercion at all."

The court also rejected arguments by Dydell that the superintendent was not protected by the Coverdell Act because he failed to comply with its language that his actions conform to federal, state, and local laws in furtherance of maintaining order and control in schools. Dydell said the superintendent failed to comply with a district policy requiring any portion of a special education student's individualized education plan that mentioned potentially violent behavior be shared with teachers.

The court said while the student who slashed Dydell was in special education and had an IEP, the Coverdell Act didn't impose a duty on the superintendent to make sure that the student's IEP detail his potential for violence (which it apparently didn't).

(Hat Tip to NSBA's Legal Clips blog for pointing out the decision.)

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A former Utah middle school teacher who was acquitted on charges of sexually abusing one of her students is entitled under a state law to be reimbursed for her attorney's fees and court costs, the state's highest court has ruled.

The Salt Lake City school district had sought to bar the ex-teacher, Shelly Acor, from recovering the costs because it argued she had acknowledged an inappropriate relationship with the student.

But the Utah Supreme Court ruled unanimously that Acor's case was covered by the state reimbursement statute, which is meant to help public employees recover costs if they are acquitted of criminal charges for any actions taken in the scope of their employment or under the "color" of their authority.

According to court papers, a former student alleged that she had a sexual relationship with Acor for several years, beginning when the student was in 7th grade in 1995. When Acor was confronted with the allegations in 2005, she resigned her teaching job and told the district superintendent that "there was a relationship and it was totally inappropriate."

The police seized a journal from Acor's home, and a prosecutor later said in court papers that the journal corroborated many of the student's allegations. But the journal and Acor's statement to the superintendent were excluded from her criminal trial, and in 2007 the teacher was acquitted by a jury of all the sex abuse charges against her.

Acor sued the district a short time later, seeking reimbursement of her attorney's fees and court costs. (The state Supreme Court's opinion did not discuss what those costs totaled.) A state trial court denied the reimbursement, but in a Jan. 28 decision, the state Supreme Court ruled for the teacher.

"The Reimbursement Statute leaves no room for a court to question the propriety of an acquittal, ... much less an employee's worthiness for reimbursement on the basis of an unspecified 'inappropriate' relationship," the state high court said in Acor v. Salt Lake City School District. "The district's strongly held and presumably sincere belief in Acor's guilt cannot defeat her right to reimbursement under the statute."

The court said it was clear that the charges against Acor arose out of her job-related activities and duties. It declined to apply a line of state and federal cases in which school districts and other public agencies were held not to be vicariously liable for sexual abuse by their employees because such actions were not part of their job-related duties.

The court said the Utah statute requires reimbursement once a public employee is acquitted of criminal charges, unless the employee is found guilty of substantially similar charges or the charges are dropped by prosecutors.

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A high school's policy of searching students who leave the campus and return during the school day does not violate the Fourth Amendment, a California state appellate court has ruled.

The court ruled in the case of a student who challenged a search conducted by the assistant principal that turned up a plastic bag with 44 pills of the illegal drug Ecstasy. The student, identified in court papers as Sean A., had been recorded as present for one of his classes and absent from others. When he was observed returning to the school campus, the assistant principal required him to empty his pockets.

The Southern California school, which isn't identified in the juvenile court case, has a student behavior policy that says students who go "out of bounds"—off campus or to school parking lots and athletic areas—are subject to being searched.

Sean A. sought to suppress the drug evidence found in the search, arguing that the school's policy violates the Fourth Amendment's prohibition against unreasonable searches and seizures. A juvenile court judge rejected the claim, and the student was given probation on a charge of possessing a controlled substance for sale.

In a Dec. 22 ruling, a panel of the California Court of Appeal ruled 2-1 to uphold the search and the school's policy.

"Given the general application of the policy to all students engaged in a form of rule violation that can easily lend itself to the introduction of drugs or weapons into the school environment, we conclude that further individualized suspicion was not required," says the majority opinion in In Re Sean A.

The majority said a 1998 California Court of Appeal ruling that upheld suspicionless random weapons screening in schools supported the legality of the policy on searching students who leave and return to campus. And the policy serves the same interests cited by the U.S. Supreme Court in two cases that upheld suspicionless drug testing of student athletes, in Vernonia School District v. Acton, and of participants in competititve extracurricular activities, in Board of Education of Independent School District No. 92 v. Earls.

The dissenting judge said the search policy does not prevent students from bringing contraband to school at the start of the day, and that it appears to have been adopted more to discourage students from bringing food to campus than to deter drugs and weapons.

"In my view, my colleagues undertake a far-reaching and unprecedented expansion of Fourth Amendment doctrine by concluding that Vernonia and Earls authorize a high school to adopt a policy subjecting students returning to campus to suspicionless searches," the dissent said.

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