February 2012 Archives

A federal appeals court has reinstated a jury verdict on a key issue in favor of a white school district administrator in Arkansas who was demoted by a majority-black school board.

The case stems from a 2007 shift on the Lee County, Ark., school board from four white and three black members to four blacks and three whites. Soon after, Superintendent Wayne Thompson and finance coordinator Sharon Sanders, who were the only two white administrators in the district's largely black workforce, were demoted.

Thompson was reassigned as assistant superintendent for maintenance and transportation, court papers say. Sanders was reassigned as a food services assistant. The board made the moves without consulting employee manuals or the district's legal counsel.

Sanders took sick leave for several months as she tussled with the board over what her new job duties and contract would entail. The new superintendent threatened to terminate Sanders because of her lengthy sick leave. Sanders resigned, and she soon sued the district and three of the four black school board members alleging race discrimination and constructive discharge, which means an employer created intolerable working conditions that forced an employee to quit.

A jury found in favor of Sanders, awarding her $10,000 on the race-bias charge, some $61,000 in wages and benefits on the constructive-discharge claim, and $8,000 in punitive damages against the three black board members named in the suit.

But on motions by the defendants, the trial judge set aside the jury's verdict and award on the constructive-discharge claim and the punitive damages. The judge left intact the race-discrimination verdict and damages on that claim.

Sanders appealed, and in a Feb. 28 decision, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, unanimously reinstated the constructive-discharge finding and the damages that went with it.

"Under the circumstances involved in this case, we believe Sanders presented sufficient evidence for a reasonable jury to conclude she was constructively discharged," the court said in Sanders v. Lee County School District No. 1. "Here, a reasonable jury could conclude the change in position from finance coordinator to food services assistant was a demotion with a diminution in title and significantly decreased responsibilities, and that a reasonable employee in Sanders's position would find the reassignment demeaning."

The appeals court also reinstated the punitive-damages claim, but said Sanders would have to prove her case against the three black school board members under a different legal standard than the one the trial judge initially used.

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The U.S. Supreme Court on Tuesday declined to hear the appeal of a Washington state school district in a lawsuit brought by a mother challenging the use of an 'isolation room' for her autistic child.

The Peninsula school district was seeking review of a federal appeals court decision that revived the mother's lawsuit alleging violations of the U.S. Constitution and the Individuals with Disabilities Education Act.

An en banc panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 8-3 last year that because the mother's suit raised constitutional claims in addition to claims under the federal special education law, the suit did not have to exhaust administrative remedies under the IDEA.

The mother's lawsuit challenges the Peninsula district's use of an isolation room for her 7-year-old son, identified in court papers as D.P. The boy's teacher used a small "safe room" to give students timeouts when they misbehaved.

D.P.'s parents initially gave grudging consent to placing their son in the safe room as part of his individualized education plan. However, they objected after D.P. was locked in the room several times and urinated and defecated on himself, the suit contends.

Both a federal district court and a three-judge panel of the 9th Circuit had ruled that the mother failed to exhaust administrative remedies under the IDEA. But the larger 9th Circuit panel, in a decision last July, ordered the district court to allow the mother to amend her suit to flesh out her claims that the boy's treatment violated the Fourth, Eighth, and Fourteenth Amendments. Then, the district court must decide whether those claims are related to the IDEA and require administrative "exhaustion," the appeals panel said. The 9th Circuit majority said it was not ruling on whether the lawsuit's underlying claims that the use of the isolation room violated civil rights had merit.

The Obama administration sided with the family at the 9th Circuit, though it did not chime in when the Peninsula district appealed to the Supreme Court.

The district argued that the federal appeals courts are divided on the test for deciding whether a civil-rights lawsuit is seeking relief that is also available under the IDEA. It also said that the 9th Circuit's decision "threatens to undermine the purposes behind IDEA's system of administrative remedies."

The district was joined at the high court by the National School Boards Association, which argued in a friend-of-the-court brief that the 9th Circuit ruling nullifies the intent of Congress, which included the exhaustion requirement in the special education law to encourage parents and districts to work together to resolve disputes.

Lawyers for the mother said in their brief that the 9th Circuit decision did not truly create a circuit conflict.

The justices declined without comment to hear the district's appeal in Peninsula School District v. Payne (Case No. 11-539).

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The U.S. Supreme Court agreed on Tuesday to hear a major new case involving the consideration of race in college admissions, in a dispute being closely watched by the K-12 community.

The justices agreed to hear a challenge to a program in which the University of Texas at Austin considers race as one factor for admission after Texas students from the top 10 percent of their high school classes claim undergraduate places guaranteed by a state law.

The court's decision to take up the case comes just two months after President Obama's administration issued informal legal guidance to colleges and K-12 schools emphasizing ways they could still permissibly take race into account in admissions and assigning students to schools.

The case of Fisher v. University of Texas at Austin (No. 11-345) will be heard next term. Justice Elena Kagan will not participate; she was U.S. solicitor general in 2010 when the Obama administration filed a brief in the case in a lower court.

The university reinstated race consideration after the Supreme Court upheld a race-conscious admissions program at the University of Michigan Law School in a 2003 decision known as Grutter v. Bollinger.

Before then, the state had been barred from using race in admissions by a 1996 decision by the U.S. Court of Appeals for the 5th Circuit known as Hopwood v. Texas. In response to that decision, the state adopted its Top Ten Percent law, which was designed to boost racial and socioeconomic diversity at University of Texas campuses without express consideration of those factors in the admissions process.

The post-Grutter program is designed to augment the Top Ten Percent law by considering race as a factor in remaining freshman class places at the university. That program was challenged by two white students, Abigail Fisher and Rachel Michalewicz, who were denied admission to the 2008 entering class at the UT main campus in Austin.

A federal district court in Austin upheld the race-conscious program in 2009. In a January 2011 decision, a three-judge panel of the New Orleans-based 5th Circuit agreed that the program did not violate the 14th Amendment's equal-protection clause.

"We are satisfied that the university's decision to reintroduce race-conscious admissions was adequately supported by the 'serious, good faith consideration' required by Grutter," U.S. Circuit Judge Patrick E. Higginbotham said in the main opinion.

Higginbotham said the Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District, which limited the ways K-12 schools could consider race in assigning students to schools, did not retreat from the 2003 Grutter decision's emphasis on a "holistic university admissions program."

"Through the Top Ten Percent Law and Grutter-like plan, UT has increased its minority applicant pool in its effort to ensure that it serves as a flagship university for the entire state, not just Texans of certain backgrounds," Higginbotham said. "Cultivating paths to leadership for underrepresented groups serves both the individual and the public, sustaining an infrastructure of leaders in an increasingly pluralistic society."

Higginbotham warned, however, that the success of the Top Ten Percent law by itself in boosting minority enrollment at the university threatens to eventually weaken the state's justifications for the race-conscious program.

"In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university's race-conscious admissions program in perpetuity," Higginbotham said.

The appeal to the Supreme Court came solely from Fisher, who is now a senior at Louisiana State University. Her lawyers argued, among other things, that the case presented a chance for the justices to "clarify or reconsider" Grutter "to restore the integrity of the 14th Amendment's guarantee of equal protection."

The state of Texas urged the court not to take up the case, arguing that it presented procedural problems because Fisher is about to finish her undergraduate education at LSU and does not represent a larger class of denied white applicants. The state suggested the university might be able to make her case moot by refunding her original $100 application fee.

Fisher's lawyers responded by arguing that the state was using "bluster" to avoid Supreme Court review. The reply brief also argued that the Obama administration's guidance on race consideration in education further made the case timely for clarifying case law in this area.

In the guidance issued Dec. 2, the federal departments of Education and Justice jointly issued separate documents for K-12 schools and postsecondary institutions that outline both race-neutral and race-conscious practices that officials say may be used to advance racial diversity and avoid racial isolation.

Photo: Abigail Fisher

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A federal judge has issued an injunction barring a Missouri school district from allowing its Internet filters to block websites that offer positive viewpoints on gay people.

U.S. District Judge Nanette K. Laughrey of Jefferson City, Mo., held that the Campdenton school district's use of filtering software that automatically blocks more than 40 sites that present positive outlooks on lesbian, gay, bisexual, and transgender (LGBT) individuals amounts to viewpoint discrimination that likely violates the free-speech rights of the sites and of students seeking such information on school computers.

The judge suggested in her Feb. 15 opinion in Parents, Families, and Friends of Lesbians and Gays Inc. v. Camdenton R-III School District that the district's choice of commercial filtering software was a big part of the problem.

The software, URL Blacklist, permits users to block categories including pornography, advertising, and "sexuality." The sexuality category automatically blocks 41 sites offering gay-positive information, including those of PFLAG, Dignity USA, and the Matthew Shepard Foundation, court papers say.

The 4,100-student school district argues that it uses Web filters to comply with the federal Children's Internet Protection Act, and that it adjusts the filter to permit access to appropriate sites at users' requests.

But Judge Laughrey found that URL Blacklist was a blunt instrument that "systematically targets the highest-quality informational sites that express a positive viewpoint toward LGBT individuals."

Another filtering software program that targets the school market did not block the gay-positive sites, and it did a better job of blocking pornography and other inappropriate sites than URL Blacklist did, the judge said. And the district appeared partially motivated by the opinion of at least one school board member and some in the community that the gay-information sites should be blocked, or that students should have parental permission to access them at school, the judge found.

In addition, the district's system for allowing students to request that sites be unblocked was not truly anonymous, the judge said, and a cumbersone procedure could deter students seeking access to the gay-positive sites.

"Students may be deterred from accessing websites expressing a positive view toward
LGBT individuals either by the inconvenience of having to wait 24 hours for access or by the stigma of knowing that viewpoint has been singled out as less worthy by the school district and the community," the judge said.

The lawsuit challenging the district's Web-filtering system was backed by the American Civil Liberties Union, which has this page with links to many legal documents in the case.

Ian Qullen of Education Week's Digital Directions magazine wrote a story in October about the Web-filtering issue.

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A Florida middle school student who cursed an administrative assistant and told her that "something bad" was going to happen to her that day did not commit an assault under state law, an appellate court has ruled.

The 3rd District Florida Court of Appeal in Miami threw out an adjudication that the juvenile was guilty of assault. The student, identified as H.W., became upset in 2009 when called to the office over an earlier infraction at Parkway Middle School in the Broward County school district.

According to court papers, the student called administrative assistant Gladys Jones a "bitch" and used other obscenities as he paced back and forth in an angry tirade. He returned to the school office a short time later and cursed Jones some more, then said something bad would happen to her "that day."

By that time, the school's security officer was nearby, and he later testified that he heard the student tell Jones, "You're going to die today, bitch. Something's going to happen to you after school, you watch."

H.W. was charged with assault on a school official, and a juvenile court judge found him guilty. But in its Feb. 1 decision in H.W. v. State of Florida, the three-judge appellate panel ruled unanimously that the state had failed to prove one of the three essential elements of the crime of assault.

Under Florida law, an assault "is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent."

The court said the state failed to prove the last element, that the student had created a fear of imminent physical harm.

"Although there was sufficient evidence to support a finding by the trial court that H.W. made an intentional, unlawful threat, and even that Jones had a well-founded fear," the court said, "H.W.'s words did not create a well-founded fear that he would do something to Jones at that time."

The appellate court ordered the trial court to dismiss the assault charge. It doesn't appear from the opinion that H.W. was charged with making a threat against Jones. It's also not clear from the opinion what form of school discipline the student faced as a result of the incident.

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A federal district judge on Thursday approved the settlement of a lawsuit over the promotion of religion by a Texas school district, and he sharply answered criticism from a current and a former Republican presidential candidate over an earlier ruling in the case.

"To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves," U.S. District Judge Samuel Frederick Biery Jr., of San Antonio, said in a court document.

The judge didn't specify to whom he was responding, but GOP presidential contender Newt Gingrich has a position paper on "Bringing the Courts Back Under the Constitution" that criticizes at length Biery and the prayer case in the Medina Valley Independent School District. Texas Gov. Rick Perry, who has left the GOP presidential race, also criticized the judge.

The Medina Valley case started last spring when a local family sued the 3,500-student school district to challenge, as an unconstitutional government establishment of religion, the district's plans to include a student invocation and benediction at a high school graduation ceremony.

Biery issued a June 1 temporary restraining order and preliminary injunction barring the district from offering prayers at the ceremony, holding that the plaintiffs were likely to succeed on the merits of their claim that such prayers would violate the establishment clause of the First Amendment.

A panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, stepped in and dissolved the temporary restraining order, holding in an emergency ruling that it wasn't convinced that student prayers at the graduation ceremony would be school-sponsored. The ceremony at Median Valley High School on June 4 went on, with numerous prayers offered by student speakers and others, and Corwyn Schultz, a member of the family challenging the prayers, skipped his own graduation.

That didn't stop the Gingrich camp Gingrich from targeting Biery for criticism. The position paper, dated Oct. 7, said Biery's original decision "is the antireligious judicial thought police at work here in America."

"As a first step toward reining in out-of-control, anti-religious bigotry on the federal
bench, Congress can start by impeaching and removing Biery from office," says the position paper, which lists as "editor'" Gingrich aide Vince Haley. "And if that fails, Congress can seek to abolish his office. The American people would be better off without a judge whose anti-religious extremism leads him to ban a high school valedictorian from saying even the word 'prayer.'"

This week, the Medina Valley district reached a settlement with the plaintiffs, who were respresented by Americans United for Separation of Church and State. The settlement curtails some alleged promotion of religion by school officials, but specifies that the district may permit student speakers to pray as part of graduation ceremonies.

Both the school district and Americans United issued statements claiming victory.

Meanwhile, Biery issued an unusual 18-page appendix to the settlement in which he outlined the history of religious freedom in America and discussed the importance of the separation of church and state, as well as a separate order approving the settlement with a "personal statement" that included his point about those who have "demogogued" the case.

In addition to that statement (quoted above), Biery said, "To those Christians who have venomously and vomitously cursed the court family and threatened bodily harm and assassination: In His name, I forgive you. To those who have prayed for my death: Your prayers will someday be answered, as inevitably [sic] trumps probability."

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A federal appeals court has thrown out a class action on special education in the Milwaukee school district, holding that the lawsuit didn't meet federal rules on defining a class of plaintiffs with common interests.

The three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, also threw out a settlement negotiated between a disability-rights group and the Wisconsin Department of Public Instruction after a federal district court found the Milwaukee district liable for systemic violations of federal special education law.

The ruling stems from a 2001 lawsuit alleging problems with the way the Milwaukee district identified students eligible for special education services. The district judge approved a class covering those students in the Milwaukee system who were eligible for special education but were denied or delayed in gaining access to the process for developing individualized education plans, or IEPs.

The judge found the district liable for violating the federal Individuals with Disabilities Education Act's "child find" provision, which requires that districts identify children with suspected disabilities and refer them for evaluation on a timely basis.

The liability decision prompted settlement talks between the state Department of Public Instruction and the class represented by Disability Rights Wisconsin. The state agreed to order Milwaukee Public Schools to meet certain compliance benchmarks and agree to an independent monitor.

This led to a 2009 district court order establishing a court-monitored remedial plan for identifying specific members of the class. The cost of the plan for the Milwaukee district was estimated between $11 million and $40 million.

The school district appealed, and in a Feb. 3 decision in Jamie S. v. Milwaukee Public Schools, the 7th Circuit panel ruled unanimously for the district on some issues and 2-1 for rejecting the class.

On the class-certification issue, the court cited the U.S. Supreme Court's 2011 decision in Wal-Mart Stores Inc. v. Dukes, which rejected a large class of female employees who alleged sex discrimination at the retail chain.

The 7th Circuit panel said the class certified in the Milwaukee case was too broad and ill-defined, in violation of federal civil rules.

"That all the class members have suffered as a result of disparate individual IDEA child-find violations is not enough," the appeals court majority said. "It does not establish that the individual claims have any question of law or fact in common."

Judge Ilana Rovner dissented on that issue, saying that while she shared some concerns of the majority, "I believe that notwithstanding the inherently child-specific nature of child-find inquiries, a class action based on a truly systemic child-find failure may be viable."

The panel was unanimous in ruling that the settlement negotiated by the state education agency trampled on the rights of the school district. The Department of Public Instruction "cannot unilaterally force [Milwaukee Public Schools] to take specific remedial action," the court said, and the settlement "attempts to do exactly that."

The Milwaukee Journal-Sentinel reports on the decision here.

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In striking down California's ballot initiative barring same-sex marriage, a federal appeals court rejected, among other rationales offered for the measure, the argument that it would protect children from being taught in public schools that gay marriage is the same as traditional marriage.

The 2-1 ruling on Tuesday by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, struck down Proposition 8, the measure narrowly passed by California voters in 2008 that withdrew the right of same-sex couples to marry. The panel found the measure violates the equal-protection clause of the U.S. Constitution.

The lengthy opinion deals with many issues, including several rationales offered by the measure's proponents, among them the so-called education rationale. In his 2010 ruling striking down the measure, U.S. District Judge Vaughn Walker had also rejected that rationale, suggesting that Proposition 8 campaign proponents had "played on fears that children exposed to the concept of same-sex marriage may become gay or lesbian," (Blog post here.)

In his majority opinion for the 9th Circuit panel, U.S. Circuit Judge Stephen R. Reinhardt also rejects the education rationale.

"California law belies the premise of this justification," Judge Reinhardt said in the Feb. 7 decision in Perry v. Brown. "Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage."

Reinhardt said allowing same-sex marriage may inevitably alter the lessons children learn in schools.

"Schools teach about the world as it is," he said. "When the world changes, lessons change. ... The prospect of children learning about the laws of the state and society's assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy."

Writing in dissent, Judge N. Randy Smith did not address the education rationale, but he concluded that proponents' "optimal parenting theory" provided a legitimate state interest for recognizing only traditional marriage. Under that rationale, recognizing marriage solely for opposite-sex couples is based on the theory that the optimal family structure for raising children is two biological parents, one man and woman.

Tuesday's decision is expected to be appealed either to a larger panel of 9th Circuit judges or to the U.S. Supreme Court.

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A federal appeals court has reinstated a lawsuit that claims girls basketball at an Indiana high school receives less desirable scheduling than the boys team, in violation of Title IX.

A three-judge panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled unanimously that the suit against the Franklin County, Ind., school system should go to trial to determine whether an "obvious disparity" in boys' and girls' basketball schedules amounts to denying equal athletic opportunities to girls.

The suit filed on behalf of several girls' basketball players at Franklin County High School says that during the 2009-10 season, 95 percent of the boys team's games were in "prime time"—such as on a Friday or Saturday night—while just over 50 percent of girls' games were played on such nights when there was no school the next day. When the girls play on Friday or Saturday night they attract large crowds, but on non-prime time nights the crowds are sparse and there is no participation by bands or cheerleaders, court papers say.

The 7th Circuit court painted a picture right out of the movie "Hoosiers."

"A packed gymnasium, cheerleaders rallying the fans, the crowd on their feet supporting their team, and the pep band playing the school song: these are all things you might expect to see at an Indiana high school basketball game on a Friday night," the court said. "The crowd becomes part of the game; they provide motivation, support, and encouragement to the players."

But the non-prime time games "result in a loss of audience, conflict with homework, and foster feelings of inferiority," the court said in its Jan. 31 opinion in Parker v. Franklin County Community School Corp.

Two mothers, including one who was the girls' basketball coach at Franklin County High, filed the suit on behalf of their daughters. The suit said the disparate scheduling violated Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.

A federal district court granted summary judgment to the defendants, which include the Franklin County district, other districts in its athletic conference, and the athletic conference itself.

The 7th Circuit court, in reviving the lawsuit, lauded the 40-year-old Title IX's role in expanding athletic opportunities for girls and women.

"Although Title IX has gone a long way in increasing the status and respect for female athletes, discrimination endures," the court said.

The court noted that as far back as 1997, the U.S. Department of Education's office for civil rights wrote a letter to the Indiana High School Athletic Association indicating that OCR viewed the differences in boys' and girls' basketball schedules as "substantial."

"The letter from the OCR was distributed to Franklin 14 years ago; yet, the disparity in scheduling continues," the 7th Circuit court said.

The court concluded that the evidence of harms from the disparate scheduling, such as the academic burden of more weeknight games, the smaller crowds at such games, and possible feelings of inferiority "are not insignificant and may have the effect of discouraging girls from participating in sports in contravention of the purposes of Title IX," the court said.

The court also revived a claim under the 14th Amendment's equal-protection clause, ruling that the school district was not immune from that claim as an arm of the state.

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