July 2011 Archives

Connecticut's highest court has barred a lawsuit by a principal dismissed from a Roman Catholic elementary school on the basis that the suit would require judicial interference in the church's selection of its religious leaders.

The Connecticut Supreme Court said the principal's state-law claims were barred by the "ministerial exception" to employment suits. Under that doctrine, initially developed with regard to federal job-discrimination laws, courts are precluded under the First Amendment's religion clauses from resolving employment disputes between churches and their religious leaders.

The case was brought by Patricia Dayner, who was the principal of St. Hedwig's Catholic School in the Archdiocese of Hartford for some 17 years before she clashed with the pastor of her church in 2004 and 2005. The pastor said she needed improvement in her leadership qualities, but Dayner believed the conflict stemmed from an incident in which she refused the pastor's request to refer a female student to the state Department of Children and Families. Dayner believed the pastor was retaliating against the student for making a complaint, court papers say.

Dayner's contract as principal was not renewed, and a promised opportunity to return to classroom teaching never materialized. She sued the archdiocese in state court, on state-law claims including breach of implied contract, breach of an implied covenant of good faith and fair dealing, and termination of employment in violation of public policy, based on alleged retaliation for Dayner's refusal to refer a student to the state.

A state trial court denied the defendants' motion to dismiss, but in its unanimous July 25 decision in Dayner v. Archdiocese of Hartford, the state high court held that the ministerial exception required the dismissal of the suit.

"It is undisputed for purposes of the present appeal that the plaintiff's duties as a Catholic school principal render her a ministerial employee," the court said. That didn't end the inquiry, though, the court said, because the federal courts of appeals are split on whether all employment claims by ministerial employees require dismissal under the ministerial exception, or whether certain claims that don't require courts to intervene into sensitive religious matters of the church employer may go forward.

The U.S. Court of Appeals for the 2nd Circuit, in New York City and which covers Connecticut, has adopted the latter approach, meaning courts may consider the employment claims of ministerial employees in some circumstances.

Nevertheless, the Connecticut Supreme Court held that all of Dayner's state-law claims are barred by the ministerial exception. Her suit would require the state courts to police the archdiocese's compliance with its own interal employment procedures or otherwise judge the employment decisions of the church.

This fall, the U.S. Supreme Court will tackle its first case involving the scope of the ministerial exception. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (Case No. 10-553), the justices will weigh whether a teacher at a religious school can fall under the ministerial exception. I wrote about that case here.

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A federal appeals court on Wednesday upheld the school discipline of a student who allegedly bullied a classmate with an Internet page describing her as a "slut" with herpes.

"Such harassment and bullying is inappropriate and hurtful and ... it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment," said the unanimous opinion by a three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

The decision is one of several in recent months by federal appeals courts grappling with cases involving students who create Web pages ridiculing school administrators or fellow students. One court backed administrators in a case, while another largely sided with students.

The 4th Circuit case involves Kara Kowalski, who was disciplined for creating a MySpace page targeting another student at Musselman High School in Berkeley County, W.Va.

According to court papers, Kowalski in 2005 created a page called "Students Against Sluts Herpes" and invited other MySpace participants from her school to join it. About two dozen Musselman High students joined the group, including one who accepted his invitation on a school computer. That male posted photos of the female student who was the target of ridicule by the group. One photo was altered to show the female student with red dots on her face, to suggest that she had herpes. The participants posted comments such as "lol [laughing out loud]" or "haha screw her."

The parents of the targeted girl complained to school officials, who disciplined Kowalski. (It isn't clear whether officials disciplined the male student who posted the photos of the ridiculed girl, or any other students who joined the MySpace group.) But school officials concluded that Kowalski had created a "hate" Web site in violation of school policies against harassment, bullying, and intimidation.She was suspended from school for five days and given a "social suspension" of 90 days, meaning she was barred from certain school activities, including the cheerleading squad.

Kowalski sued the Berkeley County school district and various officials, alleging that she was punished for speech that was created outside of school in violation of the First Amendment. A federal district court granted summary judgment to the defendants.

In its July 27 opinion in Kowalski v. Berkeley County Schools, the 4th Circuit court also upheld the right of school administrators to punish such harassing behavior.

"Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the school district's recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others," the court said, citing language from Tinker v. Des Moines Independent Community School District, the landmark U.S. Supreme Court decision on student speech rights in school.

While Kowalski created the MySpace group at home, she knew that the group would include fellow Musselman High students and that the discussion targeting a female student would result in fallout at school, the court said.

"Given the targeted, defamatory nature of Kowalski's speech, aimed at a fellow classmate, it created actual or nascent substantial disorder and disruption in the school," the court said.

The court called the "S.A.S.H." Web page "particularly mean-spirited and hateful" and expressed disapproval that Kowalski sued school officials rather than "respond constructively to the school's efforts to bring order and provide a lesson after the incident."

"School administrators are becoming increasingly alarmed by the phenomenon" of harassment and bullying, the court said. "Where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators' good faith efforts to address the problem."

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A federal appeals court has revived a job-discrimination lawsuit filed by a female building engineer in the Chicago school system. The court said the woman's retaliation claim deserves to go to trial.

The case was brought by Jessica Benuzzi, who was one of the Chicago district's first female school custodians when she began in 1981. By 2004, she had worked her way up to the job of building engineer-in-charge and was No. 13 in seniority among the school system's custodial staff of 723, court papers say.

But Benuzzi immediately clashed with Cheryl Watkins, the principal of the Pershing West Magnet School on Chicago's South Side. Watkins declined Benuzzi's requests to work an early shift, and suspended her without pay several times.

This led Benuzzi to file complaints with the federal Equal Employment Opportunity Commission alleging discrimination based on gender in violation of Title VII of the Civil Rights Act of 1964. Benuzzi contends that she faced retaliation for pressing her case. For example, soon after giving a deposition in her case, she received a memo from the principal restricting the hours she could be at the school, as well as cautionary notices for such alleged transgressions as failure to answer her walkie-talkie and failure to move tables in the school lunchroom. She also faced more serious disciplinary notices over other incidents.

A federal district court granted the school system's motion to dismiss all of Benuzzi's claims.

In its July 21 decision in Benuzzi v. Chicago Board of Education, a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, unanimously affirmed the dismissal of Benuzzi's gender-discrimination claim. But the panel revived her Title VII retaliation claim.

"We agree with Benuzzi that the sweeping Notice of Disciplinary Action citing petty misdeeds that allegedly occurred months ago, coupled with the unexplained memorandum restricting her access to Pershing, could constitute" a form of retaliation, the 7th Circuit court said.

"There are genuine issues of material fact as to the adverse nature of the actions the defendants took against Benuzzi in the wake of her deposition, and whether those actions were causally linked to Benuzzi's participation in this case," the court said. "We therefore vacate the district court's grant of summary judgment on Benuzzi's retaliation
claim and remand for trial."

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A federal appeals court on Tuesday held that lower-court supervision of a desegregation decree for the Tucson, Ariz., school district, must continue in a case that began 37 years ago.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, unanimously overturned a 2007 ruling by a federal district judge declaring the Tucson school district "unitary," or legally desegregated, despite the judge's own findings that school system officals had not shown good-faith compliance with all aspects of a 1978 consent decree.

"We reverse the court below and order it to maintain jurisdiction until it is satisfied that the School District has met its burden by demonstrating—not merely promising—its good-faith compliance with the settlement agreement over a reasonable period of time," said the 9th Circuit court in Fisher v. Tucson Unified School District.

The district was sued in 1974 by plaintiffs representing African-American and Mexican-American students. After more than a quarter-century of desegregation efforts, the federal district judge overseeing the case opened a proceeding in 2004 to decide whether it was time to end court supervision. Lawyers representing Mexican-American students objected, arguing that the district had failed to demonstrate its full compliance with student assignment provisions of the consent agreement.

In 2007, District Judge David C. Bury found the school system could be released from court supervision despite agreeing that the district had not fully complied with the consent decree in good faith. For example, the school district had failed to monitor the effectiveness of student-assignment plans and its efforts to recruit minority teachers, Judge Bury had found. But the judge said the district could demonstrate its good faith by working with other parties to develop "post-unitary" measures to continue desegregation efforts.

"The district court's own findings are fatal to its determination that the School District has achieved unitary status," the 9th Circuit court said. The court noted that U.S. Supreme Court precedents require that in making a declaration of unitary status and ending federal jurisdiction, a district court must determine that a school district has complied in good faith with the desegregation decree since it was entered and has eliminated the vestiges of past discrimination "to the extent practicable."

"To be sure, district courts possess ample discretion to fashion equitable relief in school desegregation cases, to tailor that relief as progress is made, and to cede full control to local authorities at the earliest appropriate time," the 9th Circuit court said. "Yet under our controlling precedent, the district court's extensive findings as to the School District's lack of good faith show that that time has not yet come to pass for Tucson."

According to data on the Tucson school district's Web site, the district's enrollment of 53,000 students in spring 2011 was 60.6 percent Hispanic, 24.9 percent white, 5.7 percent African American, 3.9 percent Native American, 2.6 percent Asian American, and 2.4 percent multiracial.

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Education Week has a new compilation of articles about religion in the schools, geared to teachers, administrators, school law experts, researchers, and others.

"Education Week Spotlight on Religion in Schools" is a PDF publication with links to a host of content from the newspaper and its Web site about such issues as religious expression in the public schools, approaches to teaching evolution, the portrayal of religion in textbooks, and teaching the Bible as literature, among others.

The PDF is available for $4.95 at this link. It is one of several issues spotlights published by Education Week, including ones on "response to intervention," tips for new teachers, and math and science.

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A federal appeals court has upheld the dismissal of a lawsuit by a Texas high school student who challenged her failure to make the senior cheerleading squad amid a personal squabble with another student.

"Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad," said the opinion by a unanimous three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans. "It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court."

The suit by the student, Samantha Sanches, alleges that she was hazed and sexually harassed in the spring of 2008 by a member of the cheerleading squad at Creekview High School, in the Carollton-Farmers Branch Independent School District, near Dallas. The suit says Sanches, who was on the cheerleading squad in her junior year, was disadvantaged in tryouts for the senior squad by the harassment and the responses of school officials. Sanches did not make the cheerleading team for her senior year, receiving low scores from a panel of judges.

Sanches' mother, Liz Laningham, complained repeatedly to school officials about her daughter's treatment. And Sanches' suit is replete with references to "the 'ho' incident," "the butt-slap incident," "the pregancy rumor," and other alleged harassment by the senior cheerleader who was the nemesis of Sanches, apparently at least in part because she lost a boyfriend to Sanches.

Sanches alleged that school officials violated the girl's rights under the 14th Amendment's equal-protection clause and Title IX of the Education Amendments of 1972 by acting with deliberate indifference to the allegations.

Both a federal magistrate judge and a district judge rejected the suit, and in its July 13 decision in Sanches v. Carollton-Farmers Branch Independent School District, the 5th Circuit court affirmed the dismissal.

The court said that the alleged harassment of Sanches by the senior cheerleader was teasing and bullying motivated by personal animus, and was not "based on sex" as required to come under Title IX, which bars discrimination based on sex in federally funded education programs.

The senior cheerleader who allegedly harassed Sanches "was acting like a typical high-school girl whose ex-boyfriend began dating a younger cheerleader," the 5th Circuit court said. "That is the sort of unpleasant conflict that takes place every day in high schools, and it is not the proper stuff of a federal harassment claim."

The court also said that school officials took the harassment claims seriously by investigating and taking certain actions. The school district's responses were not unreasonable merely because the mother was unhappy that officials did not remove the alleged harasser from cheerleading or place Sanches on the squad, the court said.

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A Washington state teacher did not violate the due-process rights of a student with developmental disabilities who had sexual encounters in a bathroom with another special education student, a federal appeals court has ruled.

The unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, came in a case in which a mother alleged that the teacher and other school officials failed to protect the 16-year-old female student, identified as A.H.

The student, who has mild mental retardation, had an individualized education plan that required she be supervised at all times she was out of her classroom, in part because of past incidents in which male students had sent her e-mails with graphic sexual references and urging her to take money from her mother's purse.

During A.H.'s sophomore year at Kentridge High School in the Kent, Wash., school district, her teacher began allowing her to use a nearby bathroom. On two occasions, the girl had sex in the bathroom with a male classmate who also had a developmental disability, court papers say.

A.H.'s mother sued the Kent school district, its officials, and the teacher, Francine Wilhelm, under state-law claims such as negligence and failure to protect, and brought a federal civil rights claim against the teacher alleging a violation of A.H.'s 14th Amendment due-process right to bodily integrity by failing to supervise the girl's trips to the bathroom.

A federal district court granted qualified immunity to the teacher, and in a July 11 decision in Patel v. Kent School District, the 9th Circuit court upheld the district court.

The 14th Amendment does not impose a duty on the state to protect an individual from a third party, the court said, unless one of two exceptions applies: when a special relationship exists between the state and the individual, or when the state affirmatively places the individual in danger by acting with deliberate indifference to a known or obvious danger.

Neither exception applied to A.H.'s case, the court said. Joining at least seven other federal circuit courts of appeals, the 9th Circuit panel said compulsory attendance at public school did not create a custodial relationship between the student and the state.

"While we certainly have sympathy for [the mother's] position as a concerned and caring parent, we decline to depart from this persuasive authority," the court said. "Compulsory school attendance and in loco parentis status do not create 'custody' under the strict standard" of the U.S. Supreme Court's 1989 decision in DeShaney v. Winnebago County Department of Social Services.

As to the state-created danger exception, the court said the record did not support a finding that A.H.'s teacher acted with deliberate indifference in failing to supervise her bathroom visits.

"This would be a different case if Wilhelm had known A.H. was about to enter the bathroom with [the male student] or otherwise be alone with him, yet then stood idly by," the court said. "To the contrary, Wilhelm had monitored the developing situation between the two students, and once even rushed out of her classroom to prevent a possible incident between them."

The 9th Circuit noted that the mother could still pursue her state-law claims in the Washington state courts.

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The U.S. Supreme Court's recently concluded term generated significant rulings for the rights of children, school board members, school employees, and litigants seeking to challenge aid to private schools. I have this overview in the July 13 print edition of Education Week. Below are my Top Ten decisions of the Supreme Court term of interest to educators.

CHILDREN'S RIGHTS

J.D.B. v. North Carolina (Case No. 09-11121)
The justices ruled 5-4 that age was a relevant factor in determining whether a juvenile criminal suspect merits a Miranda warning about the rights against self-incrimination. The decision came in a case in which a youth had been interrogated at his school by police and school administrators and confessed to committing neighborhood thefts without the benefit of a Miranda warning.

Camreta v. Greene (No. 09-1454)
The court concluded after hearing arguments it could not decide whether police and child-abuse investigators required a warrant or parental consent to question students in school. But the justices set aside a lower-court ruling requiring a warrant in such circumstances, and they made it easier for government officials to appeal an unfavorable constitutional ruling even when they have won a lower court decision on immunity grounds. The specific case, involving a girl whom authorities believe was being sexually abused at home, was moot, the court held.

Brown v. Entertainment Merchants Association (No. 08-1448)
The justices ruled 7-2 to strike down a California law that barred the sale of violent video games to anyone under age 18. The court said video games were deserving of the full protection of the First Amendment, and it noted that violent themes pervade children's literature, from fairy tales to high school reading lists. The government has no "free-floating power to restrict the ideas to which children may be exposed," the court said.

CHURCH AND STATE

Arizona Christian School Tuition Organization v. Winn (No. 09-987)
The court ruled 5-4 that taxpayers who opposed a state tax credit benefiting private religious schools lacked standing to challenge the program. Any financial benefit to religion under the program was not the result of government spending choices, the court held in a ruling that removed the last legal cloud over a 13-year-old Arizona program that provides a dollar-for-dollar tax credit for donations to "school tuition organizations."

FIRST AMENDMENT RIGHTS OF GOVERNMENT EMPLOYEES

Borough of Duryea v. Guarnieri (No. 09-1476)
The court ruled 8-1 that a government employee alleging retaliation for a workplace grievance cannot win a claim under the First Amendment's "petition" clause unless the employee's grievance is about a matter of public concern.

Nevada Commission on Ethics v. Carrigan (No. 10-568)
The court ruled unanimously that the act of voting by a lawmaker is not protected speech under the First Amendment. The decision upheld a Nevada ethics law for local officials, including school board members, that requires them to abstain from voting on or participating in debates on matters implicating their own financial interests or those of their close associates.

CIVIL RIGHTS LIABILITY

Los Angeles County v. Humphries (No. 09-350)
The court ruled 8-0 that a key precedent on municipal liability for civil rights violations applies even when a plaintiff is seeking only an injunction or a declaratory judgment, in contrast to monetary damages. The decision, which has implications for civil rights cases against school districts, came in the case of a California teacher and her husband who were wrongfully accused of child abuse but could not remove their names from a state child-abuse registry.

EMPLOYMENT DISCRIMINATION

Staub v. Proctor Hospital (No. 09-400)
In a case watched by school board attorneys, the court made it easier for workers to win discrimination suits based on the "cat's paw" theory of liability. That is when a biased subordinate dupes a decisionmaker into taking an adverse job action against the subordinate's target. The decision was 8-0.

Thompson v. North American Stainless LP (No. 09-291)
In a case with implications for school districts, the court ruled 8-0 that an employee who was fired after his fiancée had filed a sex-discrimination complaint had a valid claim for retaliation under Title VII of the Civil Rights Act of 1964.

CHILDHOOD VACCINES

Bruesewitz v. Wyeth (No. 09-152)
In a case of interest to the autism community, the court ruled 6-2 that the National Childhood Vaccine Injury Act of 1986 preempted all design-defect claims brought by plaintiffs seeking compensation for injuries caused by the side effects of vaccines.

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A federal appeals court on Friday invalidated a Michigan ballot initiative that barred racial preferences in admissions at state colleges and universities.

"We conclude that Proposal 2 targets a program that inures primarily to the benefit of the minority and reorders the political process in Michigan in such a way as to place special burdens on racial minorities," said the decision by a 2-1 panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati.

The ballot measure was promoted in Michigan by Ward Connerly, the California activist who had led that state's efforts to end racial preferences in education and government contracting. The Michigan measure came about after the high-profile U.S. Supreme Court cases about race admissions at the University of Michigan and its law school. The high court struck down the use of categorical racial preferences (in Gratz v. Bollinger) but said race could be taken into account as a plus factor in the individual consideration of an applicant (in Grutter v. Bollinger).

The 2006 Michigan measure amended the state constitution to bar not only state colleges but also school districts, other local governments, and the state itself from giving preferential treatement based on race, sex, color, ethnicity, or national origin. It was adopted by a vote of 58 to 42 percent.

The majority said the measure violated the equal protection clause of the U.S. Constitution as interpreted by two Supreme Court decisions about ballot initiatives. In Hunter v. Erickson, the high court in 1969 invalidated an Akron, Ohio, ballot measure that had overturned a fair-housing ordinance. In Washington v. Seattle School District No. 1, the court in 1982 struck down a ballot-initiated state law that prohibited busing for school desegregation.

"The Supreme Court's statements in Hunter and Seattle clarify that equal protection of the laws is more than a guarantee of equal treatment under the law substantively," said the majority opinion by Judge R. Guy Cole Jr., in Coalition to Defend Affirmative Action v. Regents of the University of Michigan. "It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities."

Judge Julia Smith Gibbons dissented, arguing that Michigan's public universities have ceded admissions policies to faculty committees that were removed from the political process.

The Hunter and Seattle cases "without a doubt, secure racial minorities the right to equal process within the political arena," Gibbons said. "But they do not guarantee that racial minorities will win every political battle. Nor do they hold that the repeal of those policies is impermissible, although they may be preferred by significant numbers of racial minorities."

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