School Law Reporter December 2014

Education Law Association The premier source of information on education law - Est. 1954 -

Contents – December 2014 Federal Government U.S. Dept. of Education Regulation / 181 School Law Elementary and Secondary Education Noncertified Employees / 181 SLR Constitutional Rights / 181 Reporter Contracts, Salary & Benefits / 183 Volume 56 | No. 12 | December 2014 Discrimination / 183 Tort Liability / 184 Federal Government Pupils / 184 First Amendment Rights / 184 U.S. Department of Education Regulation Law Enforcement / 184 Sexual Harassment / 185 Ass’n of Private Sector Colleges and Universities v. Duncan, 681 F.3d 427 (D.C. Students with Disabilities / 186 Cir. 2012). An association of for-profit colleges brought suit against the U.S. Secretary Tort Liability / 187 of Education to enjoin enforcement of new regulations adopted pursuant to the Higher School Boards / 187 Education Act (HEA). Specifically the association and its members objected to regulations Financial Affairs / 187 against salary adjustments made in lieu of banned incentive payments (e.g., bonuses) for School Districts / 187 student recruitment and also against misrepresentations made by the schools. The Court Constitutional Rights / 187 of Appeals upheld the regulations with regard to salary adjustments as being within the Discrimination / 188 scope and meaning of the HEA. It also found the majority of the regulations against mis- Elections / 188 representation were not overbroad and did not violate the First Amendment. However, the Labor Relations / 188 court did rule that the secretary exceeded his authority by applying the misrepresentation Tort Liability / 188 doctrine to true and nondeceitful statements that were merely deemed to be confusing. Teacher & Administrator Employment / 189 Certification / 189 Constitutional Rights / 189 Elementary and Secondary Education Discrimination / 189 Dismissal, Nonrenewal & RIF / 190 Noncertified Employees Employee Misconduct / 192 Labor/Labor Relations / 192 Constitutional Rights Pension Funds / 192 Tort Liability / 192 Wood v. Williams, 568 Fed. App’x 100 (3d Cir. 2014). This case involved a technology Higher Education assistant of a vocational-technical school who filed a Section 1983 action claiming that Board of Trustees / 193 her employer, directors, and committee members retaliated against her in violation of the Constitutional Rights / 193 First Amendment for speaking out against asbestos exposure at the school. Specifically, Tort Liability / 193 the technology assistant alleged that after she spoke out at “numerous” committee meet- Nonacademic Personnel Employment / 193 ings, the school initiated disciplinary action against her, the first she had received in her Contracts, Salary & Benefits / 193 four-year employment, and suspended her without pay for three weeks. In addition, the Discrimination / 193 technology assistant alleged that when she returned to work after the suspension, her job Professor & Administrator Employment / 194 duties were significantly altered: her access to equipment was restricted, she was assigned Discrimination / 194 inferior equipment, and she was denied access to a master key that she needed to do her job. Employee Misconduct / 195 She further alleged that a few months later, she received an unsatisfactory Property and Contracts / 195 performance evaluation and the school sent her a notice of a Loudermill hearing. Access to Facilities / 195 According to the technology assistant, the Loudermill hearing was a sham. She alleged that Construction/Facilities / 195 she did not get documents supporting the charges against her and that the administrators Records / 195 involved in the hearing could not articulate a “single instance” of her misconduct, and she Students / 195 did not get fair notice of the reasons for her suspension. Not long thereafter, the technology Academic/Curricular Issues / 195 assistant was again suspended without pay and her employment eventually was terminated. Discipline / 196 Discrimination / 196 Any opinions expressed or implied are those of the editors and may not represent official positions of the Dismissal / 196 Education Law Association. Education Loans/Financial Aid / 196 ©2014 by the Education Law Association (ELA). Federal copyright law restricts reproduction of material Fourteenth Amendment Rights / 196 from this journal without prior written permission from the Education Law Association. For more infor- Sexual Harassment / 196 mation, contact ELA by phone at 216-523-7377, or by email at [email protected]. ISSN 1059-4094 Table of Cases / 197 U.S. Supreme Court Docket / 197 www.educationlaw.org 182 School Law Reporter December 2014

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Federal Courts Higher Education U.S. Supreme Court...... Christine Kiracofe Federal Cases...... Luke M. Cornelius Northern Illinois University University of North Florida Spencer Weiler Joseph McNabb University of Northern Colorado Northeastern University Court of Appeals State Cases...... Joy Blanchard First Circuit...... Vicky McGinley Florida International University West Chester University of Pennsylvania Elizabeth T. Lugg Second Circuit �� Kathryn McCary Illinois State University McCary & Huff, LLP C. Aaron LeMay Third Circuit...... Bonnie Hoffman Sam Houston State University Hangley Aronchick Segal, Pudlin & Schiller Fourth Circuit...... Jennifer Sughrue State Courts Southeastern Louisiana University Southern...... Tim Letzring Fifth Circuit...... R. Stewart Mayers University of Mississippi Southeastern Oklahoma State University Northwestern...... Rick Geisel Sixth Circuit...... Betty Cox Grand Valley State University University of Tennessee at Martin Northeastern...... Janet Decker Indiana University Seventh Circuit...... Suzanne Eckes Indiana University Southwestern...... Michael Tan William Woods University Eighth Circuit...... R. Stewart Mayers Southeastern Oklahoma State University Rebecca Schlosser Sul Ross State University Ninth Circuit �� David Dagley University of Alabama Southeastern...... Jennifer Sughrue Southeastern Louisiana University Tenth Circuit �� Traci Ballard Pacific...... Jodi Tudor University of Oklahoma-Tulsa University of San Diego Eleventh Circuit...... Jennifer Sughrue Atlantic...... Luke J. Stedrak Southeastern Louisiana University Seton Hall University New York...... Jeanne Surface Federal Supplement...... Brenda Kallio University of Nebraska-Omaha University of North Dakota Gretchen Oltman R. Stewart Mayers University of Nebraska Southeastern Oklahoma State University Robert Hachiya Kansas State University Co-Editors Jermaine Johnson Iowa State University Patrick Pauken Brad Colwell Jennifer Sughrue Bowling Green State Unversity Bowling Green State Unversity Southeastern Louisiana University [email protected] [email protected] Chuck Noland Noland Law Office

ELA and the staff of the School Law Reporter gratefully acknowledge the research assistance provided by the staff of the West Group.

School Law Reporter Published monthly, the School Law Reporter contains citations and summaries for all current education law decisions reported by state and federal courts of record in the U.S., as well as the most recent U.S. Supreme Court docket. The Case Index is published annually. ELA members can access cases via the SLR Express, a searchable online database with analyses of selected cases that are prepared by recognized authorities in education law.

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Published monthly by the Education Law Association 183 Vol. 56, No. 1012 School Law Reporter

The school informed her that it acted because she had violated ested in working with [us], you may reapply for a position.” the Internet-use policy and her job performance was poor. The 568 Fed. App’x at 173. technology assistant argued that these reasons were pretextual Shortly thereafter, the PCA received her child abuse clear- and that she was disciplined, then fired, because she had raised ance and informed the school’s human resources specialist that concerns about asbestos on the property. The plaintiff filed suit. she had obtained her clearance and wanted to reapply for a The district court partially dismissed the complaint for position. The human resources specialist advised her to contact failure to state claims. The parties stipulated to dismiss the the principal. The PCA followed through, but was advised her remaining claims to permit immediate appeal, and the technol- position was no longer available. The principal indicated that ogy employee took this action. On appeal, the Third Circuit an MDS position was open. In the PCA’s response, which she agreed with the district court and held the following: (1) the copied to another HR specialist, she expressed an interest in the Monell claim against the school for failure to hire, train, or position, but noted that her pregnancy precluded lifting and screen was not sufficiently stated because the technology asked if there were any other positions available. Although there assistant did not allege that any state actor took any action pursuant were several open PCA positions at the time, the PCA never to policy, practice, or custom to deny her a constitutional right; received a response from the school. (2) her supervisory liability claims against the executive director Thereafter, the PCA filed a complaint and an amended and department supervisor were not sufficiently stated because complaint alleging pregnancy discrimination in violation of the complaint contained no specific factual allegations fleshing Title VII, based on both her termination and the school’s failure out the claims of supervisory liability; and (3) her Section 1983 to rehire her. The district court granted the school’s motion for conspiracy claim was not sufficiently stated because the com- summary judgment, finding thatthe PCA failed to demonstrate plaint contained no specific factual allegations of “combination, that the school’s reasons for its actions were a pretext. The PCA agreement, or understanding among all or between any of the appealed, challenging only the grant of summary judgment on defendants to plot, plan or conspire to carry out the challenged her failure to rehire claim and arguing that the district court conduct.” 568 Fed. App’x at 107. applied the wrong standard in granting the school’s summary judgment motion. In her view, the district court failed to draw all reasonable inferences in her favor. Contracts, Salary & Benefits On appeal, the Third Circuit held that there was a genuine issue of material fact as to whether the elementary school’s Troeller v. Dep’t of Educ. of the City of New York, 989 proffered reason for failing to rehire the PCA was a pretext N.Y.S.2d 32 (N.Y. App. Div. 2014). A custodial engineer was for pregnancy discrimination which precluded summary judg- suspended indefinitely for failure to provide a proper accounting ment. After carefully reviewing the record, the Third Circuit of funds allocated to him. The employee was suspended until acknowledged that the school’s position that the PCA failed he retired. Under Civil Service law, a suspension was limited to to apply for an open and available position was, on its face, a thirty days, so an arbitration panel found the indefinite suspension legitimate, nondiscriminatory reason, but concluded that the was improper. The panel awarded the former employee wages PCA had cast sufficient doubt on the school’s proffered rea- and benefit contributions for the period from thirty days after his sons. In particular, the Third Circuit found that even though the suspension through the date of his first arbitration hearing, which school argued that she never applied for a position, the record was after his voluntary retirement. The Supreme Court, Appellate showed that she did in fact “apply.” Also, it noted that deposi- Brad Colwell Division, found this back pay exceeded the panel’s authority and Bowling Green State Unversity tion testimony revealed that each of the responsible individuals [email protected] the employee was only permitted to distribute back pay awards for tacitly acknowledged that she had expressed an interest in any periods of improper suspension. Thus, no back pay should have other open position, but each disclaimed any responsibility or been awarded after the employee voluntarily retired. involvement in the decision not to rehire her. Based on these inconsistencies and contradictions, and drawing all reasonable Discrimination inferences in the PCA’s favor, the Third Circuit was compelled to reverse the judgment of the district court and remand for Roney v. Allegheny Intermediate Unit, 568 Fed. App’x further proceedings. 172 (3d Cir. 2014). In this case, a personal care assistant (PCA) at an elementary school filed suit against her employer Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678 alleging pregnancy discrimination in violation of Title VII. (W.D. Pa. 2014). A U.S. magistrate judge granted a motion for The PCA at first was provisionally hired for ninety days; summary judgment in favor of the school district after it was her employment was provisional because she had yet to determined that the plaintiff failed to establish a prima facie case obtain the required child abuse clearance. While provisionally of disability discrimination and harassment under the Americans employed, she made the school aware that she was pregnant. with Disabilities Act (ADA), and failed to establish prima facie Shortly before the expiration of the ninety-day provisional case of retaliation under the ADA or the Pennsylvania Human period, management asked the PCA to produce the required Relations Act (PHRA). Although the plaintiff’s depression consti- child abuse clearance. Because she had failed to apply for the tuted a mental impairment under the ADA, factual issues existed clearance, she promptly pursued obtaining this credential. In the as to whether he was subjected to any alleged prohibited actions meantime, the school’s director of human resources informed because of that mental impairment. her, by letter, that her employment was terminated because she The plaintiff was hired in the maintenance department lacked the required clearance. The letter advised the PCA that in 1997 and by 2001 was promoted to a foreman position. He if she received her “clearance in the near future and are inter- also became certified to perform additional duties. In 2002,

he began feeling symptoms of depression, and for several damages related to an injury he suffered while working as a years had varying degrees of symptoms. The plaintiff testified masonry laborer. The injured worker commenced action against that he did not believe any member of the district knew of his the school being renovated, the construction manager, the con- depression. After a new director of building and grounds posi- struction party, and several third-party defendants. The lower tion was created in 2010, the plaintiff, as well as other workers, court applied the wrong statute to the situation, one that dealt with complained that their working conditions had changed by taking passageways and walkways rather than one that dealt with open away certain jobs they previously performed and increasing new areas at a construction site. The Appellate Division found that duties they deemed impossible to complete. Overtime was reduced the defendants should have been granted motions for summary and other work was outsourced. judgment, dismissing several claims against the defendants and The plaintiff took leave under the Family Medical Leave Act those brought in for the purposes of indemnification. Summary (FMLA), indicating that a psychological issue necessitated his judgment was granted to two third-party subcontractors brought leave. During his leave, he was demoted from foreman to work in as third parties, to owners and construction managers on labor team leader, which involved a reduction in responsibilities and claims, and to a contractor as to indemnification and breach of pay. While the court determined that the plaintiff’s depression contract claims. constituted a mental impairment under the ADA, the evidence suggested that duties were removed and changed at least in part Pupils due to fiscal measures and reorganization, and that no reasonable jury could find that the district changed its perception of the First Amendment Rights plaintiff after it learned of his depression. Additionally, the court determined that the plaintiff performed essentially the same job Nixon v. Hardin County Bd. of Educ., 988 F. Supp. 2d 826 functions after he returned from FMLA leave, that no reasonable (W.D. Tenn. 2013). Two seventh-grade girls, L.S. and A.N., had jury could find that he was disabled under the PHRA, and likewise running conflicts with K.N. that escalated to online tweets posted could not determine that he was harassed and demoted based on out of school. The tweets included L.S. saying she would “shoot his alleged disability. [K.N.] in the face” and A.N. tweeting, “Good luck. Shoot her in the face” (both tweets contained attached pictures of a girl and a Davenport v. Anne Arundel County Bd. of Educ., 998 F. gun). K.N.’s mother, a teacher, showed the tweets to the school Supp. 2d 428 (D. Md. 2014). Davenport, a female administra- principal. A resource officer and an assistant principal investigated. tive intern over forty years of age, was passed over for several assistant principal openings in the school district. Because the A.N. and L.S. both said the tweets were not meant seriously, but deputy superintendent supervising interns made remarks about the girls were reassigned to an alternative school for forty-five Davenport’s “experience” and “seniority,” as well as the salary days for threatening K.N. No suspensions were imposed. A.N.’s such seniority would command, it supported the notion of an mother appealed the decision to a hearing board, which reduced economic decision and not animus toward Davenport due to her the reassignment to ten days and required A.N. to participate in age. Therefore, no discrimination had occurred. counseling. A.N. and her mother sued the school district, the director of Reed v. Garden City Union Free Sch. Dist., 987 F. Supp. schools, the principal, and the assistant principal under 42 U.S.C. 2d 260 (E.D.N.Y. 2013). The plaintiff, age sixty-four, was ter- Section 1983, alleging constitutional violations of the First, Eighth minated after five years of employment as a high school hall and Fourteenth amendments and the Tennessee Governmental Tort monitor. Subsequently, she sued the school district and several Liability Act (GTLA). The defendants moved for summary judg- site-level administrators under the federal Age Discrimination in ment on all claims. After extensive analysis of the U.S. Supreme Employment Act (ADEA), the New York State Human Rights Law Court decisions and recent circuit court decisions on discipline (NYSHRL), and 42 U.S.C. Section 1983. She alleged her supervi- for out-of-school conduct, the court found that the speech in this sors favored younger employees in work assignments and other case “had no connection to [the school] whatever other than the conditions of employment, retaliated against her and ultimately fact that both the speaker and the target of the speech studied terminated her for complaining, and denied her constitutional equal there” and denied the defendants’ motion for summary judgment protection. The defendants moved on several grounds to dismiss on the First Amendment claim. 988 F. Supp. 2d at 839. It then the claims for failure to state a claim on which relief could be granted summary judgment for the defendants on the Eighth and granted. The court analyzed the plaintiff’s complaint under the Fourteenth amendment claims and dismissed the state tort claim pleading standards of Bell Atlantic Corp. v. Twombly, 550 U.S. without prejudice for refiling in a Tennessee court, as required 544 (2007), found it sufficient to state claims for relief under the by the GTLA. ADEA and the NYSHRL, and allowed those claims to proceed. The court then rejected the defendants’ assertion that the ADEA Law Enforcement preempted the Section 1983 claim, held that the plaintiff had alleged sufficient facts to support a claim for denial of clearly established G.M. v. Alabama, 142 So. 3d 823 (Ala. 2014). During a search constitutional rights, denied the defendants’ request for qualified of a student for a cell phone violation, the principal discovered immunity, and allowed the equal protection claim to proceed. several small bags of cocaine. After discussions about the student with his teacher, the principal learned that the student was often Tort Liability with his cousin, G.M. The principal directed the assistant principal (AP) to question G.M. The AP did so; he then informed G.M. that Desena v. North Shore Hebrew Acad., 989 N.Y.S.2d 505 he was going to conduct a search of his person, and asked him (N.Y. App. Div. 2014). A construction worker sought to collect to empty his pockets. G.M. complied, removing his wallet and Published monthly by the Education Law Association 185 Vol. 56, No. 12 School Law Reporter putting it on a table. The AP found a small bag of what appeared include claims under 42 U.S.C. § 1983 for violation of her consti- to be cocaine inside a pocket of G.M.’s wallet. A delinquency tutional right to bodily integrity and 20 U.S.C. § 1681 for sexual charge was filed against G.M., who moved for suppression of abuse and molestation, as well as state constitutional violations. the evidence based on illegal search. The juvenile court denied The district court dismissed the complaint and the student appealed. the motion and found G.M. delinquent. G.M. appealed, and sub- The court of appeals affirmed dismissal of the complaint and held sequently the state criminal appellate court reversed, finding the that the one-year statute of limitations applicable to a student’s search unconstitutional. The state appealed to the state supreme personal injury claims was not tolled by fraudulent concealment. court, which agreed to hear the case. The statutory period for plaintiff to bring the action was one year The court viewed this case as one of first impression. following her eighteenth birthday; however, she did not file her It phrased the issue around whether a student’s association complaint until six years after that. Gilley argued that, because the and relationship as cousin with another student who did have board failed to report the alleged sexual abuse to law enforcement cocaine, and suspected gang affiliation, justified the search. authorities, it fraudulently concealed her causes of action against In reversing the juvenile court and upholding the criminal it and, furthermore, that the board had “actual knowledge and appellate court, the court held that a student’s association with reasonable cause to believe that Vincent [the coach] was sexually or proximity to other students who were either suspected of or abusing [her].” 572 Fed. App’x at 306. known to be involved in misconduct is insufficient to establish The court concluded that no evidence existed that the board reasonable suspicion justifying a search of the student. intended to conceal the plaintiff’s causes of action, or that it misled her. To the contrary, the investigation conducted by the State of Florida v. E.M., 141 So. 3d 682 (Fla. Dist. Ct. board, which involved questioning Gilley and her mother, as App. 2014). When a student is caught in criminal violation that well as the coach, proved that it was not attempting to conceal its could result in discipline, Florida law provides a waiver of such knowledge. Moreover, Gilley should have suspected that she was discipline under two circumstances. First, a waiver occurs “if the being sexually abused based on her relationship with the coach. student divulges information leading to the arrest and conviction of the person who supplied the controlled substance to him or Davis v. Carmel Clay Schs., 570 Fed. App’x 602 (7th her.” The second occurs “if the student voluntarily discloses his Cir. 2014). A ninth-grade basketball player was allegedly or her unlawful possession of the controlled substance prior to harassed by four seniors in the high school locker room and on a his or her arrest.” The law continues by stating as follows: “Any bus trip to a game. The ninth-grade student testified that the seniors information divulged which leads to arrest and conviction is not grabbed his genitals, flashed their own genitals, and taunted him admissible in evidence in a subsequent criminal trial against the with sexual innuendos almost every day in the locker room. On student divulging the information.” the bus, three of the four students sat on his face and tried to pull A student’s locker smelled of marijuana during a dress code down his pants. One of the seniors tried to stick a finger through violation questioning. The student admitted to having marijuana his pants. The student claimed that nobody helped him. After the on him and also voluntarily told school administrators he had incident on the bus, a mother of another student called the school more marijuana at home. That resulted in a police search of his nurse to report the incident. This report was given to administra- home, producing enough marijuana that the student was adjudi- tors, who then contacted the police department. All four of the cated delinquent for possession with intent to distribute. Since he students were eventually suspended and expelled. The victim’s “voluntarily disclosed” his possession of marijuana, the student father withdrew his son from the school district because three of argued that these statements could not be used against him under the four seniors would be re-enrolled. Florida law. However, the court disagreed, finding that only the first The parents alleged violations under Section 1983 (i.e., equal method of discipline waiver—requiring the arrest and conviction protection, due process “state-created danger,” failure to train) of others—resulted in the suppression of the student’s statements and Title IX for peer harassment. Affirming the federal district’s at trial. Since his waiver of discipline fell under method two, dis- decision granting summary judgment to the district, the Seventh closing unlawful possession, he was not entitled to his statements Circuit Court of Appeals did not find that school officials had actual being suppressed at the delinquency hearing. knowledge of the harassment until after the mistreatment stopped.

Sexual Harassment Babcock v. Walton Cent. Sch. Dist., 989 N.Y.S.2d 172 (2014). A high school teacher sexually assaulted a former student in 2010 Gilley v. Dunaway, 572 Fed. App’x 303 (6th Cir. 2014). Gil- and 2011. The result was a series of harassing text messages and ley, a former student, brought action against the school board and incidents of sexual contact between the student and teacher. In its two superintendents, alleging that she was sexually abused by 2011, rumors circulated about the relationship between the stu- her high school coach. The plaintiff alleged that she participated dent and teacher, but both vehemently denied any inappropriate in a sexual relationship with a high school coach while a student relationship to school administrators. The student graduated in at the school, a relationship that began when she was 14 years 2012, returning to the school shortly after graduation to admit the old and continued until she graduated. She claims that her friend relationship to the principal. The teacher subsequently resigned, informed one of the district superintendents about the relationship, and was arrested and charged. In 2013, the student filed an which precipitated a district investigation. During the inquiry, application for leave to serve a late notice of claim. The leave to the coach denied the affair and Gilley’s mother provided a letter file a late notice of claim was determined to be inappropriate, as to the school board to the same effect. Based on these findings, the school did not have actual knowledge of the essential facts of the district did not report the alleged sexual abuse to authorities. the case within ninety days of the plaintiff’s claim. In addition, The suit was filed in state court and the board removed it to the student offered no persuasive explanation for why there was federal district court, wherein Gilley amended her complaint to a one-year delay between when he reached the age of majority All rights reserved 186 School Law Reporter December 2014

and the filing of the claim. Such a delay, paired with the school’s E.M. ex rel. E.M. v. Parajo Valley Unified Sch. Dist., lack of knowledge of essential facts, deemed the granting of the 758 F.3d 1162 (9th Cir. 2014). An eligibility determination was leave to serve a late notice of claim erroneous. conducted for E.M. in 2004, before he entered fourth grade, to decide if he qualified for special education services as a student Students with Disabilities with a learning disability. The school district had at its disposal scores from three instruments measuring intelligence, and chose E.M. v. New York City Dept. of Educ., 758 F.3d 442 (2d Cir. the middle score to generate a discrepancy score. The discrepancy 2014). The mother of a child with severe autism rejected the public score generated was insufficient to make E.M. eligible for services. school district’s proposed placement and enrolled the child in a The parents asked for an administrative hearing in 2006; over the private school. Even though the parent had paid no tuition to the subsequent eight years, the case was before the administrative law private school, and it appeared that the school might not seek to col- judge twice, before the district court three times, and before the lect tuition from her directly, her contractual obligation to pay was appellate court twice. sufficient to give her standing to seek direct payment by the school At the second remand, the U.S. Department of Education district to the private school. Because the district court’s conclu- joined the litigation as amicus curiae to buttress the plaintiff’s sion—that the district’s proposed placement would constitute a free position that E.M., who exhibited a central auditory processing appropriate public education—was improperly based on retrospec- disorder, could be eligible for services as a student with “other tive testimony about what the placement would be that was not health impairment.” The appellate court supported the depart- contained in the IEP itself, the circuit court vacated the determi- ment’s interpretation that a child with a disability could qualify nation. The court remanded the matter for further consideration, for special education benefits under more than one of the listed since the record was insufficient for it to resolve the challenge to categories in the IDEA. However, the court held that neither the the IEP on the merits. standard of review, nor the factual determinations made at different stages of the litigation, had been altered, leaving the educational Reyes v. New York City Dept. of Educ., 760 F.3d 211 (2d decisions made at each stage reasonable. The school district had Cir. 2014). The plaintiff’s son had autism, sensory integration not acted unreasonably when it denied E.M. services under the dysfunction, ADHD, and moderate mental retardation. The school category of “specific learning disability” early in the litigation, district proposed a 6:1:1 classroom, with a one-to-one aide for a and the school district had not later acted unreasonably when it transitional period of three months. It was improper for the state decided that E.M. did not qualify under the “other health impair- review officer to rely on retrospective testimony that the three- ment,” because there was insufficient evidence that E.M.’s central month period could be extended. The court deferred to the deter- auditory processing disorder limited his alertness sufficiently to mination of the impartial hearing officer that the student required come under the definitions of that category of disability. Both the services of a one-to-one aide for longer than three months; sides were ordered to pay their own attorney fees. since the IEP did not provide such services, it was inadequate to provide a free appropriate public education. Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266 (3d Cir. 2014). This case involved the matter of first impression of Ward v. Bd. of Educ. Enlarged City Sch. Dist. of Middletown, whether claims against a school district for allegedly retaliating 568 Fed. App’x 18 (2d Cir. 2014). During the school year, the against a child with a disability, and/or the child’s mother for plaintiff became dissatisfied with the out-of-state school where her enforcing the child’s rights under the Individuals with Disabilities daughter had been placed by the Committee on Special Education Education Act (IDEA), Rehabilitation Act (Section 504) and the (CSE). She removed her daughter, enrolled her in a different school, Americans with Disabilities Act (ADA), required exhaustion. and notified the school district of her intent to request an impartial The district court dismissed the claims for lack of subject mat- hearing. At a subsequent meeting, the CSE agreed to seek a different ter jurisdiction because they intentionally failed to exhaust the residential school in which to place the child. The IEP indicated administrative remedies under the IDEA. that the placement would be an approved residential school, noting On appeal, the mother and child argued that the district court that the CSE had offered home instruction for the child during erred in concluding that their federal claims were subject to the the period it was seeking that school. The hearing officer found IDEA’s exhaustion requirement. Disagreeing, the Third Circuit that the school where the child had started the school year was an held, as a matter of first impression, that the mother and child’s appropriate placement, and denied tuition reimbursement for claims that the school district retaliated against them for enforc- the unilateral parental placement. On appeal, the parent claimed ing the child’s rights under the IDEA could be brought under, this was a procedural error because the IEP placement was home and remedied by, the IDEA, thus requiring exhaustion. The Third instruction. The hearing officer’s decision was upheld: The CSE Circuit reached this conclusion because it found that the IDEA recommended a change in placement, with interim home instruc- affords parents of a disabled child the opportunity to present a tion, only because the parent had made it clear that her daughter complaint “with respect to any matter relating to the identification, would not continue to attend that school, so that recommending evaluation, or educational placement of the child, or the provision she continue in that school would have been futile. Because the of a free appropriate public education [FAPE] to such child[,]” 20 district’s placement of the child at the time the mother chose to U.S.C. § 1415(b)(6)(A) (emphasis added), also that the retaliation make a unilateral placement actually provided a free appropriate claims “relate unmistakably” to the provision of a FAPE to the public education, the parent had not met the initial prerequisite child, and are thus subject to the IDEA’s exhaustion requirement. for seeking tuition reimbursement. Moreover, on review, the state In addition to the plain language and structure of the IDEA, the review officer properly found that the unilateral placement was Third Circuit found that the purpose of the IDEA’s exhaustion not an appropriate placement, so that she had not met the second requirement, and the policy concerns supporting it, also supported prerequisite for reimbursement. its conclusion that retaliation claims related to the enforcement Published monthly by the Education Law Association 187 Vol. 56, No. 12 School Law Reporter of rights under the IDEA must be exhausted before a court may while the parents felt attempts to exhaust administrative remedies assert subject matter jurisdiction. would be futile, based on some disagreements on implementa- In addition, the mother and child argued that even if the tions and options offered by the district which the court called court found that their claims fall within the scope of the IDEA’s “conclusory allegations” against the district, the parents still had exhaustion requirement, those claims were exempt because they to demonstrate they would seek all appropriate administrative sought only monetary damages, which are unavailable under the remedies prior to commencing legal action. IDEA; the implementation exception applied; and/or the futility exception applied. The Third Circuit rejected each argument Tort Liability finding: (1) the complaint requested, in addition to compensatory damages and punitive damages, statutory damages, reasonable Williams v. Weatherstone, 15 N.E.3d 792 (N.Y. 2014). attorney fees and “such other further relief as this court deems A twelve-year-old girl waiting for the bus was struck by a just and appropriate,” and even though a monetary award is not car. The student had an individualized education program available during the IDEA administrative process as compensa- (IEP), but it did not specify any special transportation needs. tory and punitive damages, such an award may nevertheless be The district filed a motion for summary judgment, claiming granted as reimbursement for certain expenses incurred; (2) the that it had no duty to the girl at the time of the accident, but a futility exception applies where the parties challenge only the New York trial court denied the motion and an appellate court implementation of a child’s IEP and not its adequacy or content, affirmed. The New York Court of Appeals reversed the lower courts’ and here, mother and child were challenging the adequacy and decisions. It reasoned that the district did not owe the student a content of the child’s IEP; (3) the district’s alleged past failure to duty at the time of the accident, and did not owe a special duty implement the child’s Section 504 plan and IEP was an insufficient to the student based on her IEP. basis to excuse the exhaustion requirement. Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014). In this I.K. v. Haverford Sch. Dist., 567 Fed. App’x 135 (3d Cir. personal injury case, a legally blind student was injured when he 2014). This case involved an action brought by a special education- fell from the bleachers at South Floyd Middle School. It was usual eligible student, by and through his mother, against the Haver- procedure for students to sit in assigned sections of the bleachers ford School District (the school district). The parent and child prior to the start of school, and teachers supervised the children. On alleged that the school district failed to provide the child with free the day of the injury, the bleachers had not been fully extended; the appropriate public education (FAPE) as required by Individuals student failed to notice this and walked off the retracted portion, with Disabilities Education Act (IDEA) and discriminated against falling six to eight feet to the floor, and suffering injuries to his him on account of his disability claims under the Americans with head and arm. When his parents sued the principal and teacher for Disabilities Act (ADA), and Section 504 of the Rehabilitation negligence, they asserted governmental and qualified immunity. Act (Section 504). The school district moved for summary judg- The trial court denied the defendants’ motion for summary judgment, arguing that even though no valid settlement agreement ment, and the court of appeals affirmed the trial court’s decision. was executed, on the theory of promissory estoppel, the parent’s The Kentucky Supreme Court reversed the decision regarding the promises to settle the child’s IDEA and discrimination claims finding against the principal, finding that principals were entitled were enforceable. The district court granted the school district’s to qualified immunity because they had general discretionary motion in part, and the parent appealed that ruling. responsibility in looking out for the students’ safety, assigning The Third Circuit affirmed the judgment of the district court, specific tasks to employees, and providing general supervision finding the district court properly held that the school district of those employees. The court affirmed, in part, regarding the established promissory estoppel. It reached this conclusion based teacher, finding that the teacher was not entitled to qualified on its findings that during the relevant time period, the parent met immunity, because the teacher had a duty to supervise the students with her attorney and agreed to the terms of a settlement agree- which was ministerial and required enforcement of known rules. ment wherein the parent promised to release all claims against the school district in exchange for money that would be used to homeschool the child. Shortly thereafter, the school district sent the School Boards parent a slightly revised version of the agreement, which embodied the parent’s promise in detail. The parent never expressed any Financial Affairs objections to the settlement terms. Relying on the parent’s promise to homeschool the child in exchange for money and a release of Gary Comm. Sch. Corp. v. Indiana Dep’t of Local Gov’t Fin., any claims against it, the school district refrained from initiating 15 N.E.3d 1141 (Ind. Tax 2014). A school district sought review truancy proceedings when the child did not report to school. Given of the reduction of the district’s exempt debt service fund levy by these facts, the Third Circuit concluded that the parent promised the Department of Local Government Finance (Department). The to settle her claims, and that she should have reasonably expected Indiana Tax Court reversed the Department’s decision, reasoning that her promise would induce action or forbearance on the part that no statutory language granted it this authority. of the school district. School Districts Donus v. Garden City Union Free Sch. Dist., 987 F. Supp. 2d 218 (E.D.N.Y. 2013). Parents of special education students must Constitutional Rights exhaust all available administrative remedies prior to commencing litigation. Parents of several special education students filed Washburn v. Kirk, 437 S.W.3d 831 (Mo. Ct. App. 2014). claims of discrimination and retaliation under IDEA. However, A middle school teacher and a student’s mother had a verbal All rights reserved 188 School Law Reporter December 2014

confrontation about the student in Walmart. The teacher was that the state’s legitimate interest in the integrity of its elections speaking on a cell phone and refused to discuss the student with did not justify this type of ballot restriction. the mother at that time. Even though the meeting was random, the teacher sought and obtained an ex parte order of protection, Labor Relations claiming that the mother was stalking her. The mother was not served prior to the parent-teacher conferences, and the mother Southfield Educ. Ass’n v. Southfield Bd. of Educ., 570 attempted to speak with the teacher at the conference. The sole point Fed. App’x 485 (6th Cir. 2014). A teachers’ union brought of error is that the mother claims that the court erred in issuing a action under 42 U.S.C. § 1983 against the school board, alleging protective order because the contacts do not meet the definition that the board violated the due process rights of twenty-three of “stalking” under the Missouri Adult Abuse Act. The appellate teachers who had been laid off. The U.S. District Court for the court agreed and reversed the trial court’s judgment granting the Eastern District of Michigan granted the board’s motion to dismiss, order of protection. and the union appealed. In January 2012, the union filed a complaint in state court Discrimination that the board violated its recall standards when, after a teacher layoff, it hired new applicants instead of recalling the laid-off Daubert v. Lindsay Unif. Sch. Dist., 760 F.3d 982 (9th Cir. teachers. Additionally, the defendant alleged that the board’s 2014). Daubert brought suit against the school district, arguing action violated Michigan’s Public Employees Relations Act and that it had violated Title II of the ADA by not making the bleach- the due process clause of the state constitution. In March of that ers at football games wheelchair accessible. The metal bleachers year, the plaintiff filed a second complaint in federal district court for the single football field for this small school district were on the basis that the board, additionally, violated the teachers’ built in 1971 and extend on the south side of the field between due process rights as guaranteed by the Fourteenth Amendment the two thirty-yard lines. The school district provided program to the U.S. Constitution. The state court dismissed the plaintiff’s accessibility by allowing persons in wheelchairs to watch from due process claim and the district court granted the defendant’s three areas: the east end zone in front of the concession stand; any motion to dismiss the federal complaint based on res judicata. corner of the field; and in front of the bleachers, at either end of The union appealed the latter dismissal on the basis that the state the bleachers. Daubert contended that none of these places pro- due process claim was based on Michigan’s constitution, while vided unobstructed views of the game—due to other spectators, the federal claim concerned the U.S. Constitution. coaches, and players on the sidelines—and that the failure of the The appellate court affirmed the dismissal and held that the school district to provide access to the bleachers for spectators due process claim was barred by res judicata. The court opined in wheelchairs deprived them of the social experience attendant that the allegations, underlying facts, and parties were the same with the games. The district court granted summary judgment to in both actions; furthermore, “all claims arising from the same the school district, and the appeals court affirmed. The bleachers transaction that could have been raised in state court, but were were existing structures upon the passage of ADA, and the school not, are barred.” 570 Fed. App’x at 489. The union failed to district was not required to renovate them to make them wheelchair seize the opportunity to litigate the federal due process claim in accessible. The school district provided program accessibility by the state court action. Additionally, the plaintiff’s argument that offering different locations from which patrons in wheelchairs the district court’s dismissal was premature, since discovery on could watch the football games. The regulatory scheme for Title the merits had not begun, was moot, given that its claims were II of the ADA distinguishes facilities from programs. The school barred by res judicata. district provided access to programs and is not required to alter existing facilities to provide more access to the program. Tort Liability Elections Peterson v. Miranda, 991 F. Supp. 2d 1109 (D. Nev. 2014). After attending and drinking alcohol during a holiday party on Parker v. Lyons, 757 F.3d 701 (7th Cir. 2014). The plaintiff, November 28, 2009, underage defendant Kevin Miranda ran a who was convicted of a felony thirty years ago for theft, wanted red light and crashed his truck into a vehicle driven by Angela to run for the local school board. Since Illinois law prohibits those Peterson, killing her. Miranda subsequently pled guilty to a felony convicted of certain crimes from running for office, his name and is serving a prison sentence. The parents of Peterson brought was removed from the ballot because of the prior felony. The plaintiff argued that his rights under the Fourteenth Amendment suit against several parties, including the Clark County School (equal protection) and First Amendment (free expression) were District (CCSD). A dispatcher for the CCSD police department violated. Affirming the lower court’s decision, the Seventh Circuit created fliers for the party on department computers during work- held that the state law did not violate the Equal Protection Clause ing hours, posted the fliers, and emailed invitations to the party because there was no fundamental right to hold office. The court through the department email system. Several members of the observed that felons are not members of a suspect class and the CCSD police department attended the party. The parents of the ban on allowing a felon to run for office was rationally related to victim filed numerous claims, including a remedy under Section a legitimate state interest in ensuring confidence in the honesty of 1983 to individuals whose constitutional rights have been violated officials. With regard to the plaintiff’s argument that the state law by a person acting under color of state law. has a disparate impact on African American men, the court held The court held that named defendants who did not attend the that the plaintiff failed to allege that the legislature acted with a party did not engage in conduct that would constitute an action discriminatory purpose when it enacted the law. The plaintiff’s under state law. Similarly, the court held that although the police First Amendment claim also failed because he did not demonstrate dispatch supervisor attended the party, there was no evidence Published monthly by the Education Law Association 189 Vol. 56, No. 12 School Law Reporter he engaged in any conduct that could be construed as an official Constitutional Rights duty. However, the court held that a police sergeant who attended the party and allegedly observed the underage drinking was not Khachatourian v. Hacienda La Puente Unif. Sch. Dist., 572 entitled to summary judgment, because CCSD police officers Fed. App’x 556 (9th Cir. 2014). Khachatourian, a teacher, was have an obligation, even while off duty, to respond to criminal arrested after a drug dog alerted to his classroom desk, and a gun activity, especially underage drinking. Additionally, the court and knife were found in the teacher’s desk drawer. Upon ques- reviewed documents that the defendants engaged in a cover-up tioning by his supervisors and in the presence of a police officer, of CCSD employees’ activities surrounding the party, including the teacher admitted that the gun and knife were his. The teacher destruction of the fliers and erasure of the related emails. Even brought suit under 42 U.S.C. § 1983, alleging that the school though there was no evidence that any conduct at the party was officials had violated his Fourth and Fifth amendment rights in undertaken on behalf of CCSD, the cover-up prevented summary allowing the search by the drug dog, and in failing to provide a judgment in favor of the CCSD regarding the tortious acts of its Miranda warning before questioning him. The appeals court held agents. Furthermore, since off-duty officers who attended the party that the teacher’s search and seizure rights were not violated by had a duty to stop the underage drinking, combined with evidence the dog’s sniff search of the classroom and the subsequent search that after the party supervisory employees engaged in conduct to of the teacher’s desk. The teacher’s expectation of privacy within cover up activities of those who attended the party, the CCSD his classroom and his desk were not reasonable, given the regu- could be held vicariously liable for the conduct of its employees. larity of canine searches in the school, and the school district’s The court also held that while the CCSD was entitled to im- interest in ridding the school environment of contraband. Because munity against a claim of negligent hiring, discretionary immunity the teacher was not in custody during questioning, and was free does not extend beyond the hiring to their retention and supervi- to leave the room, including an opportunity to confer with his sion. The plaintiffs were not entitled to punitive damages from union representative, neither the school officials nor the police the CCSD, but the individual defendants were not immune from officer, who was intermittently present during the questioning, that possibility. Finally, the plaintiff’s claim of civil conspiracy were required to give the teacher a Miranda warning. was allowed to stand, based on the evidence of the cover-up by supervisory employees of the CCSD. Ruppe v. Knox County Bd. of Educ., 993 F. Supp. 2d 887 (E.D. Tenn. 2014). An assistant principal brought a Section 1983 Purvis v. Grant Parish Sch. Bd., 144 So. 3d 922 (La. 2014). action against the Knox County Board of Education claiming a The Louisiana State Supreme Court ruled it was not manifest error violation of her liberty rights under the Fourteenth Amendment, due for the trial court to apportion the plaintiff forty percent of the to her reassignment to a teaching position, and the board’s refusal fault in an accident with a school bus. The accident occurred on to grant her a “name-clearing” hearing. The court held sufficient a curve on a road without a striped center line. The court reversed evidence existed to support Ruppe’s reassignment to a teaching the appellate court, holding that most of the evidence was based position and there was no violation of Ruppe’s liberty rights. on conflicting testimony requiring the trial court to determine Therefore, Ruppe was not entitled to a “name-clearing” hearing. credibility of the witnesses. As the court noted, appellate courts should defer such credibility judgments to the trial court that had Discrimination firsthand observation of the testimony. The court also supported the trial court’s decision of not awarding future medical costs. Townsend-Johnson v. Rio Rancho Pub. Sch., 568 Fed. App’x 542 (10th Cir. 2014). Townsend-Johnson, an African American Teacher & Administrator Employment elementary school principal, faced nonrenewal of her contract by the superintendent after officials determined that she failed to meet Certification her growth plans. She sued on the basis of race discrimination under 42 U.S.C. §1981 and retaliation under Title VII. Follow- Kewley v. Dep’t of Elem. and Secondary Educ., 15 N.E.3d ing summary judgment in favor of the defendants at the district 224 (Mass. Ct. App. 2014). A school employee sought declara- court, the Tenth Circuit Court of Appeals affirmed. Having failed tory judgment to clarify that she could practice speech therapy to present direct evidence of discrimination or retaliation, the in schools without a license from the Board of Registration in court applied the burden-shifting framework to both claims. The Speech–Language Pathology and Audiology (Board). Previously, defendants conceded that Ms. Townsend-Johnson established she had practiced speech therapy in a district because she only prima facie cases for each at the district level, and the appellate needed licensure from the state department of education. Subse- court found that the defendants articulated nondiscriminatory and quently, the Board was created and the school district required nonretaliatory reasons for her nonrenewal. However, the plaintiff all school speech therapists to be licensed by the Board. The failed to demonstrate that the defendants’ explanation was unworthy Board denied the employee’s application for licensure because of belief by a rational factfinder by reason of incoherence, weak- she lacked the requisite master’s degree. The employee contended nesses, inconsistencies, or contradictions, and therefore did not that a safe harbor provision should permit her to practice speech establish pretext for either claim. The summary judgment awards therapy. However, a Massachusetts trial court and the appellate on both claims were upheld. court disagreed. Royster v. Laurel Highlands Sch. Dist., 994 F. Supp. 2d 701 (W.D. Pa. 2014). An African American female over forty years of age filed suit, under ADEA and the Pennsylvania Human Rights Act (PHRA), claiming the district discriminated against her based on her race, gender, and age by failing to hire her as All rights reserved 190 School Law Reporter December 2014

superintendent. Because the board decided to limit candidates for which she could potentially raise the claim was the one year for the superintendent position to those persons qualified for the in which the teachers gained tenure and she did not. job and currently employed by the district, there was no evidence Royster was treated differently than any similarly situated person Dismissal, Nonrenewal & RIF due to her race, gender, or age. Mirabilio v. Reg’l Sch. Dist. 16, 761 F.3d 212 (2d Cir. 2014). Petrone v. Hampton Bays Union Free Sch. Dist., 568 Fed. Mirabilio, a tenured teacher, asserted that she was entitled to written App’x 5 (2d Cir. 2014). Because of his generalized anxiety disorder notice and the opportunity for a hearing before her position was and panic disorder, the plaintiff was unable to perform the duties reduced, for budgetary reasons, from full time to part time. The of his teaching position without accommodation; he was granted circuit court held, over a vehement dissent, that the reduction did a leave of absence to seek treatment, but was denied an extension not constitute a “termination” that would trigger those procedural of that leave. The teacher contended that the additional unpaid protections under state law. The majority’s decision was based on leave was a reasonable accommodation, and that when the district decisions from Connecticut’s highest court interpreting the statute; denied him the leave it violated his rights under the Americans the dissent took the position that, because those decisions concerned with Disabilities Act and Section 504. However, he failed to offer administrators rather than teachers, they were not relevant, and evidence that he was able to perform the essential functions of the question should have been certified to the Connecticut court. his position at the time he was terminated, as neither he nor his doctor informed the district that he was able to return to work at McCray v. Carter, 571 Fed. App’x 392 (6th Cir. 2014). A that time, or of the anticipated length of time for which he would former chief financial officer (CFO) brought action against the board of education and its members, alleging First Amendment need a leave of absence, or a specific anticipated return date. retaliation, violation of the False Claims Act, and violation of Michigan’s Whistleblowers’ Protection Act (WPA). The U.S. Hurst v. Kansas City, Missouri Sch. Dist., 437 S.W.3d 327 District Court for the Eastern District of Michigan granted sum- (Mo. Ct. App. 2014). In this age discrimination case, the school mary judgment for the defendants, and the plaintiff appealed. district failed to hire a sixty-one-year-old school psychological McCray began her employment with the Detroit Public examiner for a reconstituted position as educational diagnostician. Schools as CFO on August 1, 2007, pursuant to the recommenda- The employee received an award of $247,083.78, punitive damages, tion of the newly appointed superintendent with whom the plaintiff and attorney fees. The appellate court found that not accepting an had previously worked. From the outset of her tenure, McCray offer to remain with the district as a classroom teacher—where discovered occasions of financial mismanagement and that the the employee had been out of the classroom for thirty-seven years district faced serious budgetary issues. She shared these concerns and did not feel she could do an adequate job teaching the class, with the board in August or September of 2007, and the superin- so instead retired from the district—did not constitute a failure to tendent sought their approval for an outside agency to perform an mitigate damages and was not a bar to submissibility of damages. audit. Even though board members denied the request, external funding was obtained and the audit was performed. Yager v. Massena Cent. Sch. Dist., 989 N.Y.S.2d 177 (N.Y. In January of 2008, McCray was appointed board trea- App. Div. 2014). Yager, an assistant superintendent, filed a com- surer. In this position, she advised the board on numerous plaint with the board of education claiming the superintendent instances that the district was not operating at a deficit and, had discriminated and harassed her to the point of forcing her to therefore, would not have to adopt a deficit budget for the fiscal retire due to retaliation. An independent counsel investigated the year beginning July 1, 2008. Nonetheless, after receiving the former administrator’s complaint and recommended the complaint results of the audit, the plaintiff informed the board in June of be dismissed. Yager requested a copy of the full report and an that year that the district faced a $400 million budget deficit. The appeal hearing before the board. The request was denied. She superintendent and board members did not take the news well, then sought to compel the board to release the report. The New and the former reprimanded McCray and the district’s executive York Supreme Court, which viewed the report in camera, deemed director of the budget “for mishandling their financial responsibili- it should not be disclosed because it was journal-like and full of ties” and other deficiencies. 571 Fed. App’x at 395. conjecture and hearsay. The court allowed only the findings and Ultimately, the plaintiff presented two budgets to board mem- conclusions be reviewable to Yager. However, on appeal, Yager bers in June 2008, both representing a deficit budget, despite the documented that board regulation mandated disclosure, and the fact that adopting a deficit budget would mean the appointment Appellate Division required it to be released in full, regardless of of an emergency manager by the state to take over the district’s the makeup or fashion in which the report was crafted. operations. McCray’s relationship with board members continued to deteriorate. They removed her as board treasurer and pursued Visco v. Brentwood Union Free Sch. Dist., 991 F. Supp. 2d her removal as CFO. The superintendent gave the plaintiff writ- 426 (E.D.N.Y. 2014). A long-term substitute teacher, seeking to ten notice in September 2008 that the board was considering claim age discrimination against a district, was allowed to amend nonrenewal of her contract and that she had one week to request her complaint only as it related to the discrimination during the a meeting with the board; however, McCray did not request a time period she could allege she was denied a probationary posi- meeting. Three months later, the state appointed an emergency tion, and was filed in a timely fashion. The teacher claimed that manager to run the district and, a week later, the board terminated in the time period she was denied a probationary position, three the plaintiff without cause. younger teachers earned tenure and she was denied the opportunity McCray appealed the district court’s grant of summary solely because of her age. The court found the only time period judgment concerning her WPA claim and the court’s denial of

Published monthly by the Education Law Association 191 Vol. 56, No. 12 School Law Reporter her motion for leave to amend her complaint to include a claim mail service in the neighborhood, and the school district’s failure for breach of contract. With respect to the latter cause of action, to verify through the postal service whether the certified letter the court affirmed the denial of her motion to amend on the basis had been delivered, were enough to support the requirement of a that the motion was untimely and would cause the defendants pre-termination hearing. prejudice, since it was filed after the close of discovery. More specifically, she waited more than two-and-a-half years before Wallace v. Greenville Pub. Sch. Dist., 142 So. 3d 1104 (Miss. moving to amend. Ct. App. 2014). A teacher working for a school district for five The court reversed the district court’s grant of summary years was asked by her principal to change grades for two students. judgment as to the plaintiff’s WPA claim, and held that her The teacher believed the reasons for the request were unethical reports to the board in June 2008 were a motivating factor in the and illegal, and she refused to comply. The teacher claimed the adverse employment action taken against her: The plaintiff’s act principal’s behavior toward her created the choice between res- constituted protected activity since the district had previously ignation or termination. She tendered her resignation by letter, been operating at a deficit, which is a violation of state law. Once dated December 6, 2006. The teacher then sued the school district McCray informed the school board about the financial problems, on December 21, 2009, alleging willful and malicious breach of two members threatened her employment and, as agents of her her employment contract. The lower court dismissed the claim employer, this violated the WPA. Moreover, these same two since it was not filed within the three-year statute of limitations board members cast decisive votes for her termination. The court for contract claims. affirmed dismissal of her First Amendment retaliation claim; it The teacher argued that the since her letter of resignation, held that the one-year time period between her protected activity though dated December 6, 2006, did not go into effect until the and her termination was “too long to support a causal inference.” end of the term, December 31, 2006, thus meeting the three-year 571 Fed. App’x at 398. statute of limitations. Based on this argument, she appealed the lower court’s dismissal. The appellate court upheld the dismissal, Kimble v. Illinois State Bd. of Educ., 16 N.E.3d 169 (Ill. App. stating that the cause of action, as well as the statute of limitations Ct. 2014). The Chicago Board of Education (Board) dismissed a clock, began on the date she submitted her letter of resignation. twenty-year veteran teacher after a student alleged that the teacher choked and pushed him. The student was absent from the teacher’s Russo v. New York City Dep’t of Educ., 989 N.Y.S.2d 475 dismissal hearing and a counselor provided testimony about his (N.Y. App. Div. 2014). A veteran special education teacher had allegations. The teacher claimed the student’s statements were received satisfactory evaluations for his entire career. When he was hearsay and that to admit them into evidence was a violation of assigned to a self-contained special education class performing her due process rights. The trial court reversed and remanded the two to three years below grade level for three consecutive years, decision back to the Board, and then affirmed the Board’s deci- his performance evaluations became unsatisfactory due to his sion. An Illinois appellate court reversed the decision, reasoning inability to control the classroom and inability to plan and execute that when the teacher was unable to cross-examine the student, lessons. The school district then proceeded to terminate him. The it violated her right to due process. teacher sued, claiming that the termination was shocking to the sense of fairness due to the fact his record showed satisfactory Taylor v. Huntsville County Bd. of Educ., 143 So. 3d 219 (Ala. performance until he was placed in that particular classroom. The Civ. App. 2014). The school district sent a certified letter with return Supreme Court, Appellate Division, held for the teacher and found receipt and a separate first class letter to a teacher, indicating the a pattern of inconsistencies of support from the administration, board was terminating her employment after eighteen years. The including a lack of a documented and supported assistance plan letters gave the teacher fifteen days to request a hearing. At the next for the teacher. The court noted the teacher’s unblemished record board meeting, members found that the teacher had not requested a prior to this assignment should have been considered, as should hearing and so voted to dismiss her. The board did not verify whether his frequent requests for help, which were ignored. the certified letter had been received. The next day, the teacher was informed of the board’s decision in person and was escorted Puchalski v. Depew Union Free Sch. Dist., 989 N.Y.S.2d off school grounds. She sought assistance from her state education 739 (2014). A long-term administrator was terminated for association and immediately filed a complaint. An administra- charges of misconduct, immoral character, and conduct tive law judge (ALJ) heard the complaint and ruled there was unbecoming a principal. A hearing officer imposed a penalty sufficient evidence from testimony, and the record indicated the of termination and commenced communication with the state’s teacher did not receive the letters. As a result, the ALJ ordered the education department, which mailed the decision to all parties. school district to provide the teacher a pre-termination hearing When the administrator’s attorney attempted to serve the school according to state code. district notice of the petition, notice was left with the payroll clerk, The school district appealed, and the circuit court reversed a nonauthorized person to receive legal notice or service on behalf the ALJ’s order. The teacher appealed to the appellate court, of the school district. Therefore, the school district claimed the which reversed the circuit court and reinstated the ALJ’s order of proceeding was not commenced in a timely fashion because the a pre-termination hearing. The appellate court noted that the ALJ notice of petition and petition were not properly served. The court had written a twenty-six-page opinion explaining the rationale agreed the service was timely, yet defective, and the payroll clerk for the decision. The court held the facts demonstrated that the was not a “school officer” deemed able to accept legal notice under teacher had overcome the rebuttable presumption of receiving state law. Service of legal papers must be offered to an appropriate the letter. The testimony of neighbors concerning the unreliable school official to be deemed proper.

Employee Misconduct from the court of appeals on its own motion. The supreme court determined that the former teacher was entitled to his retirement Sup’t-Dir. of Assabet Valley Reg’l Vocational Sch. Dist. v. benefits, because the particular facts surrounding the teacher’s Speicher, 15 N.E.3d 735 (Mass. 2014). A librarian was suspended conviction did not directly involve his position as a teacher. for twenty-one days without pay for conduct unbecoming a teacher after the superintendent determined that the librarian had Ekdahl v. Indep. Sch. Dist. # 213, 851 N.W.2d 874 (Minn. vouched for a student’s presence in the library for an amount of 2014). The plaintiff injured his back while working for the defen- time in excess of the time the student actually was in the library. dant, which ultimately resulted in the plaintiff retiring from his An arbitrator found the suspension must be rescinded, and a teaching position and being awarded permanent total disability Massachusetts trial court agreed. On transfer, the Massachusetts benefits. Thereafter, the defendant petitioned for an offset of its Supreme Court affirmed the decision, reasoning that the district required disability benefit payment by the amount of pension ben- had the burden to show the alleged conduct was serious enough efits the plaintiff was receiving. The defendant argued that state law to warrant the suspension. (i.e., Minn. Stat. § 176.101, subd. 4 (2012)) authorized an offset for “any old age and survivor insurance benefits.” 851 N.W. at 874. The Thomas v. State of Ala., 142 So. 3d 1264 (Ala. Crim. App. plaintiff argued that the statute’s language referred to social security 2014). At trial, evidence was presented that the high school benefits and not to pension benefits. A state compensation judge principal continually asked a female student when she was denied the requested offset, but the Workers’ Compensation Court of going to call him. He told the student that he had been watching Appeals (WCCA) reversed. The main issue before the Minnesota her for a long time and that she was making him “hot.” The prin- Supreme Court was “whether the phrase ‘old age and survivor insur- cipal had asked the student about her relationships with other male ance benefits,’ as used in Minn.Stat. § 176.101, subd. 4, includes students, including a specific question about a sexual relationship. pension benefits received by a former government employee” Finally, in the privacy of his office, he rubbed her hair, hugged Id. The Minnesota Supreme Court held that under the state’s her, kissed her on her forehead and lips, and then grabbed her workers’ compensation statute, which provides an offset against hand, rubbed it against his penis, and stated,“look what you’ve permanent total disability benefits when a claimant receives any done to me.” At trial, the principal argued that he had not made old age or survivor insurance benefits, the phrase “old age and sexual contact as defined by state law. survivor insurance benefits” refers only to federal social security The law in question defines sexual contact as “any touching benefits. As a result, the court reversed the WCCA and denied the of the sexual or other intimate parts of a student, done for the defendant’s request for an offset. purpose of gratifying the sexual desire of either party. The term includes soliciting or harassing a student to perform a sex act.” Tort Liability While noting the principal did not touch the student’s intimate parts, the court held it was fair for the jury to infer from the evidence Duncan v. Manning, 998 F. Supp. 2d 725 (E.D. Wis. 2014). A that the principal had solicited or harassed the student to perform federal district court judge held that a former high school basketball a sex act, which is also defined as sexual contact. As a result, the coach sufficiently stated that the parents of a player on his team principal’s conviction and sentence were upheld. assaulted and battered him after an out of town game, and that he had suffered “substantial other damages” as a result of the assault. Labor/Labor Relations The coach also sufficiently stated the actions of the parents were a substantial factor in his termination from employment, and that the Bd. of Educ. of City of Chicago v. Ill. Educ. Labor Rela- parents demand for the coach’s termination based on intentional tions Bd., 14 N.E.3d 1092 (Ill. App. Ct. 2014). Probationary falsehoods qualified as action without justification or privilege teachers who were not renewed filed grievances because “do as required for a claim of tortious interference with contract. The not hire” notes were placed in their personnel files. The Chi- coach also sufficiently claimed a civil conspiracy claim, but did cago Board of Education (Board) claimed it was not required not sufficiently claim the parent acted with the purpose of causing to arbitrate these grievances. The Illinois Educational Labor emotional distress. Relations Board (IELRB) disagreed; however, an Illinois The case resulted after parents chased after the coach fol- appellate court held that the Board was not required to arbitrate lowing a basketball game and confronted him in an aggressive these grievances. Despite the broad definition of grievance in manner, verbally assaulted him, and backed him into a corner, the collective bargaining agreement (CBA), the CBA did not where he was head-butted. The coach stated he feared for his life remove the Board’s authority over managerial process in selecting as the assault continued in front of players, parents, and students. employees. The appellate court remanded the case to the IELRB. Other parents and coaches intervened, and the parents were ultimately escorted from the premises. The following day the parents Pension Funds met with the dean of students and school president. During the meeting, the parents demanded that the coach be terminated and Garney v. Mass. Teachers’ Ret. Sys., 14 N.E.3d 922 (Mass. “made intentionally false and malicious statements regarding the 2014). A ninth-grade teacher was dismissed after being convicted incident of the previous evening.” of purchasing and possessing child pornography. The Massachu- The coach was fearful of more attacks and coached an setts Teachers’ Retirement System (MTRS) board found he was additional game under allegedly extreme emotional distress and not eligible to receive his pension, based on the conviction, and a fear for his personal safety. Within a week, he was terminated from Massachusetts district court affirmed. On appeal, a superior court his employment and was medically diagnosed with major depres- reversed, and the Massachusetts Supreme Court transferred the case sion and post-traumatic stress disorder. He eventually relocated Published monthly by the Education Law Association 193 Vol. 56, No. 12 School Law Reporter his family, but was unable to return to any form of employment. Jackson v. Murray State Univ., 834 F. Supp. 2d 770 (W.D. The court held there was sufficient reason to believe that the Ky. 2011). An African American student was allegedly assaulted parents willfully and maliciously injured the coach’s reputation and subjected to racial slurs at a fraternity party off-campus, after and profession, and denied the defendants’ motion to dismiss. which he sued the fraternity, its president, and its members for his injuries. He also sued the university and its president under the HigherEducation federal and state civil rights acts, alleging both their responsibility for the operations of fraternities and vicarious liability for Board of Trustees the presence of the chapter faculty advisor being present at the party at which the assault occurred. The district court dismissed Constitutional Rights the claims against the university and president under sovereign immunity and failure to state a claim against either. Turkish Coalition of Am. v. Bruininks, 678 F.3d 617 (8th Cir. 2012). This case arose from a reference regarding the Keitz v. Unnamed Sponsors of Cocaine Research Study, Armenian genocide of World War I. A professor posted a list of 829 F. Supp. 2d 374 (W.D. Va. 2011). The University of Virginia “unreliable sources” on an academic center website dealing with enrolled a subject in a drug study in which he was injected with the Holocaust and other alleged genocides in history. The plain- cocaine and given an experimental drug. After being discharged tiff, Turkish Coalition of America (TCA), was listed on the site. from the study, he experienced extreme symptoms and sought TCA claimed defamation and free speech violations against the treatment from the university medical center. He was refused university. In addition, a student of Turkish background claimed and suffered a severe medical decline. The plaintiff brought suit First Amendment violations after the professor strongly advised under Section 1983 against the university and its officers. The him against using the TCA site for academic purposes. The court court dismissed the claim, finding that study participation had upheld the student’s lack of standing, noting he had suffered no not created a danger and that the university and its officers were academic penalties and was not even enrolled in a course offered immune as state actors under the Eleventh Amendment doctrine by the professor. The court agreed that the TCA had standing to of sovereign immunity. challenge its inclusion on the list. However, the appellate court upheld that the list of unreliable sources was an unactionable Mallory v. Brigham Young Univ., 332 P.3d 922 (Utah opinion and not defamation, and that the posting of the list by the 2014). The plaintiff, Mallory, was injured in a motorcycle university in no way impaired the TCA’s free speech. Dismissal accident while leaving the property of the defendant, Brigham of the case was upheld. Young University. He filed suit alleging that the defendant’s employee was responsible for his injuries. The university moved Tort Liability to dismiss, stating that because the individuals were employees of Provo City at the time of the accident, under the definition provided Munion v. Trs. of Columbia Univ., 991 N.Y.S.2d 460 (N.Y. in the applicable state law, filing of timely notice with Provo City App. Div. 2014). An employee of a temporary staffing agency was required, and that was not done. The case was dismissed for used by the university slipped and fell while working as a coat lack of subject matter jurisdiction. The plaintiff appealed, and the checker at the campus faculty club. The employee began receiv- court of appeals reversed, holding that dismissal was premature ing workers’ compensation benefits from the staffing agency, and because insufficient evidence had been presented that defendants later filed to receive benefits from the university. The trial court were “employees” under the state law. The defendant appealed to denied the university’s motion for summary judgment. On appeal, the Utah Supreme Court, which found that the court of appeals the court reversed, finding that the employee could not receive had erred in its definition of “employee” under state law. To be benefits from both employers. individually protected by the state law, the agent (e.g., the university employee) must be sufficiently under the control of the Doe v. Univ. Healthcare Sys., LLC, 145 So. 3d 557 (La. Ct. governmental entity (e.g., the municipality) to qualify as its servant, App. 2014). Twenty plaintiffs filed a total of nine lawsuits against if that agent does not fall into one of the other specifically listed the university medical center and General Electric Company, categories in the law such as independent contractor. Because a claiming emotional distress and mental anguish stemming from Provo City ordinance provided sufficient authority to control and being informed that they may have contracted sexually transmitted limit the manner in which the defendant could utilize non-peace and infectious diseases when medical equipment used in proce- officers when directing traffic, such individuals were employees dures had not been properly sterilized. The plaintiffs sought to be under the terms of the act. Therefore, the trial court properly dis- certified into two classes: one class for those that had undergone missed the lawsuit for lack of subject matter jurisdiction because procedures and possibly been exposed, and one class for those timely notice of a claim was not filed. married to or in a relationship with those patients. The appellate court affirmed the trial court’s denial of the Nonacademic Personnel Employment motion to certify the classes. Regarding one factor of a prima facie case, the court found that the geographic disbursement of Contracts, Salary & Benefits the plaintiffs would unduly burden the court. Also, the plaintiffs failed to satisfy the commonality requirement, as separate analysis DeLuca v. Trs. of the Univ. of Penn., 834 F. Supp. 2d 282 would be needed to determine the cause of the plaintiffs’ anxi- (E.D. Pa. 2011). A university employee alleged violations the ety and emotional distress, such as medical, mental health, and Family Medical Leave Act (FMLA) and retaliation after she sexual histories. resigned as a center director. She had claimed FMLA for the All rights reserved 194 School Law Reporter December 2014

adoption of a child. When the child was born with addiction to wear shoes and socks while applying herbicides and pesticides issues, she sought intermittent leave under the FMLA and then a was not pretext for discrimination under Title VII. reduced work schedule. When these requests were rejected, she took extended FMLA. Upon her return to work, she was given Jolly v. Univ. of North Carolina at Wilmington, 831 F. added responsibilities. The plaintiff resigned, believing she could Supp. 2d 916 (E.D.N.C. 2011). A retired university employee not adequately perform the full responsibilities of her position brought claims of discrimination and unjust termination from and care for her child’s medical condition. The court found that his position as an information technology professional under the employee had failed to notify the university of her child’s Title VII and the Age Discrimination in Employment Act. He medical needs, and that her added work duties were not pretext alleged various claims of racial, religious, and age discrimination for retaliation under the FMLA. against the university. The court found that the employee, while on paid administrative leave during an investigation, voluntarily Poole v. Univ. of North Carolina, Chapel Hill, 762 S.E.2d retired from the university. The court ruled that retirement did not 223 (N.C. Ct. App. 2014). Poole, the plaintiff, hurt his back while constitute an adverse employment action under Title VII or the working for the University of North Carolina, Chapel Hill, and was ADEA, and dismissed all claims. awarded compensation under state workers’ compensation laws. Six years later, the defendant applied to terminate Poole’s benefits Mason v. Bd. of Trs. of the Univ. of Ill., 830 F. Supp. 2d 532 for failure to cooperate with vocational rehabilitation. Eight years (C.D. Ill. 2011). A fifty-three-year-old female program director in after that, and almost fifteen years after the injury occurred, the a university fire sciences institute was demoted from her position, plaintiff filed an application seeking pain management treatment. while two younger male colleagues with less experience received The deputy commissioner dismissed Poole’s claim as untimely. At promotions. The plaintiff alleged violations of the Age Discrimi- a hearing of the full commission, the deputy commissioner’s ruling nation in Employment Act. The court found that the promotion of was reversed and university was ordered to reinstate the plaintiff’s the two younger male employees did not demonstrate a systematic temporary disability compensation payments. The defendant patter of age discrimination. However, while it found that alleged appealed, raising two issues: (1) whether the commission applied remarks of a sexist nature against other female employees did not an incorrect legal standard; and (2) whether there was error in the constitute a pattern of gender discrimination, the court did find finding that one of plaintiff’s doctors was an authorized treating that comments made by the former program director’s superior physician. As to the first issue, the defendant argued that the statute regarding her employment stated a prima facie case for age dis- required the plaintiff to accept the treatment when ordered, or be crimination. The court ruled the plaintiff had stated a claim under barred from further compensation; that it was improper to allow the ADEA, and the university had the burden of proving that her him at a later date to say he would comply. The court found that demotion and transfer was not pretext for such discrimination. since the plaintiff’s benefits were only suspended, not terminated, for refusal to cooperate with vocational rehabilitation, the com- Professor & Administrator Employment mission could order reinstatement of those benefits at any time the plaintiff expressed a willingness to cooperate. Regarding the Discrimination issue of an unauthorized physician, the court found that because the defendant accepted the plaintiff’s claims for compensation for Saliba v. Five Towns Coll., 991 F. Supp. 2d 449 (E.D.N.Y. medical treatment through the supposedly unauthorized physi- 2014). An assistant professor claimed she was terminated cian, university’s argument was without merit. The decision of in retaliation for complaints she made regarding a sexual the commission was affirmed. harassment issue involving another professor and his students, and drug distribution or use by a campus security officer and students. Discrimination The claim under federal law was dismissed, as the professor did not show she was engaged in protected activity during the activ- Tyler v. Trs. of Purdue Univ., 834 F. Supp. 2d 830 (N.D. ity that caused her termination. The professor had attempted to Ind. 2011). A female technology director was terminated during claim her complaints of racially discriminatory practices led to a reduction-in-force and department reorganization and replaced her termination, yet she failed to actually state how that claim led by a male co-worker who had been given lower performance directly to her termination. In addition, the professor also failed to evaluations. She also contended that the university vice president exhaust all administrative remedies, including a timely complaint had previously stated a preference for retaining her over the male with the EEOC regarding her alleged termination for complaints employee. She brought suit, alleging violations Title VII, the about discriminatory practices. Finally, because the federal claims Equal Pay Act, and retaliation. The court granted summary judg- were dismissed and the only remaining state law claims were ment to the university, finding that the reasons for the plaintiff’s supplemental, the court was permitted to dismiss the state law termination were not pretextual. Although she had received higher claims without prejudice for lack of subject matter jurisdiction. performance evaluations, the retained employee possessed the technical certifications to perform both functions, while she did not. Employee Misconduct

Jividen v. Univ. of Tenn., 834 F. Supp. 2d 745 (W.D. Tenn. People v. Lofchie, 176 Cal. Rptr. 3d 579 (Cal. Ct. App. 2014). 2011). A female grounds worker was fired and alleged gender dis- A faculty administrator at the public university hired his wife as crimination in her termination. The court ruled for the university, a program assistant for a summer study abroad course. When a finding that it had promoted a male co-worker based on a rational fellow professor learned of this, he complained to departmental preference, and that the grounds worker’s termination for refusing supervisors in addition to filing a whistleblower claim. When no

Published monthly by the Education Law Association 195 Vol. 56, No. 12 School Law Reporter action was taken, he brought his complaint to the county district Records attorney. The appellate court upheld the trial court’s dismissal of claims that the faculty administrator should be criminally pros- U.S. v. Boston Coll., 831 F. Supp. 2d 435 (D. Mass. 2011). ecuted under state conflict-of-interest law. The court agreed that The U.S. Government sued Boston College on behalf of the United a public university was not intended to be considered the “state” Kingdom to enforce subpoenas issued under the Mutual Legal under the parameters of the law, that application of the statute Assistance Treaty between the two nations. The government of would interfere with the institution’s state constitutional autonomy, the United Kingdom was seeking materials related to two former and that the university had its own conflict-of-interest policies. combatants in the Northern Ireland conflict that had been given to university researchers under an oral history program known as Property and Contracts the “Belfast Project.” The college agreed to turn over materials from one subject, who was now deceased, but refused to provide Access to Facilities the other, citing the college’s absolute guarantee of confidentiality to the subjects of the oral history project. The U.S. District Court McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012). A nonstudent rejected the college’s claims, finding no recognized legal privilege wished to express his evangelical Christian beliefs on the campus that protected the statements. The court also determined that the of a state university. He was informed of a campus policy that substantial likelihood that the statements involved violations of required him to give fourteen days’ advance request and restricted UK law weighed further in favor of disclosure. him to a less-trafficked area of campus. When he asserted his First Amendment rights were being violated, the trial court found that the State v. Bernard, 762 S.E.2d 514 (N.C. Ct. App. 2014). policy was content-neutral and that he lacked standing to challenge This case dealt with unauthorized access to the computers of it. On appeal, the court found that the plaintiff had standing as a North Carolina Agricultural and Technical State University citizen to challenge the policy. The appellate court also ruled that (NCATSU). It started as a civil suit and evolved into a criminal the university policy was unconstitutional in restricting speech from prosecution against Patrice Bernard. The defendant attempted to areas that were traditional public fora, and that the fourteen-day exclude evidence gathered from her off-campus residence, but was advance notice period constituted a prior restraint on free speech. unsuccessful. A jury ultimately found Bernard guilty of access- The court ruled against a university policy requiring speakers to ing a government computer without authority for the purpose of disclose the content of their speech prior to speaking on campus. executing a scheme or artifice to defraud, accessing computers, and identity theft. Bernard appealed both the orders denying her Construction/Facilities multiple motions to suppress evidence and the judgments against her. The State argued that Bernard waived her issues on appeal Allied Bldg. Products Corp. v. Strober, 97 A.3d 1169 (N.J. due to her failure to provide transcripts for review. Because of an Super. Ct. 2014). Strober was a roofing subcontractor on a project order by the trial court ordering the State to provide transcripts, an on the campus of William Patterson University (WPU). The general order with which the State never complied, the court found that it contractor was Dobco. Under the subcontracting contract, Strober could not penalize Bernard for a failure to show that her arguments was required to furnish performance and payment bonds. Strober were preserved in the transcript, as it was the State’s burden to sought the bonds from the underwriter, Colonial, but because of provide those transcripts to the defendant. Bernard contended that the unique way in which Colonial did business, Colonial did not the trial court erred in denying her motions to suppress for lack of review the Strober subcontract before issuing the performance probable cause, lack of jurisdiction, and violation of the Fourth bonds. The bonds that ultimately were issued identified the obli- Amendment. The court found her arguments without merit. As gee as WPU, the owner, instead of Dobco, the general contractor. regarding lack of jurisdiction of the campus police to carry out Problems multiplied, including who had possession of the bonds a search of a private, off-campus residence, because the email and the validity of the bonds. Finally the confusion resulted in was sent through NCATSU computer servers on the campus, the Strober being terminated for failure to provide the required bonds, campus police had jurisdiction to execute a search warrant at her causing Strober to file for bankruptcy protection and Dobco to file home. Finally, on the issue of a violation of Bernard’s Fourth a claim against Colonial. Strober claimed both the first and second Amendment rights, the court stated: “While we agree that Detective bonds were valid; Dobco claimed that neither set of bonds were Tillery’s conduct was inappropriate and in intentional violation of valid because the wrong obligee was named; and Colonial said the defendant’s attorney-client privilege, the fact remains that he had bonds were valid and retained Strober’s premium. The trial court probable cause for the search warrant and due to the Agreement granted summary judgment to Colonial, finding that WPU, and with the City of Greensboro, he also had the legal authority to not Dobco, was the designated obligee under both sets of bonds, execute the search warrant. [762 S.E.2d at 538, 539] and that Dobco rejected both the first and second set of bonds; therefore, no valid contract was formed between Colonial and Students Dobco. On appeal, the appellate court stated that in New Jersey, when a bond incorporates a contract by reference, the bond and Academic/Curricular Issues the contract must be considered as one integrated document in ascertaining the meaning of the bond’s provision. By employing Reed v. Florida Metro. Univ., Inc., 681 F.3d 630 (5th Cir. the principal of strict construction in interpreting the bond, the 2012). A Texas student enrolled in a for-profit college degree trial court erred. The decision of the lower court was reversed, program in paralegal studies. The college was based in Florida and the case was remanded for further proceedings in conformity and was not registered with the State of Texas to conduct busi- with the opinion of the court. ness in that state. After graduation, he discovered that his degree

was not accepted by employers or law schools in Texas, and he Dismissal brought suit in state court alleging violations of the Texas Edu- cation Code. He also sought class action status. The university Peavey v. Univ. of Louisville, 834 F. Supp. 2d 620 (W.D. removed the action to federal court and requested the court enforce Ky. 2011). A medical resident was dismissed in her second year the arbitration clause in the enrollment contract. The court did of residency by the defendant university and faculty. Based upon so, and the arbitrator accepted the claim for class arbitration and an alleged racist remark by one of her supervising faculty, she eventually granted an award to the plaintiff. This award and class alleged racial discrimination as retaliation for her complaints arbitration status was affirmed by the district court. On appeal, about the professor under Title VII of the Civil Rights Act. She the Fifth Circuit confirmed that both parties had implicitly agreed also claimed fraud, breach of contract, defamation, and wrongful to class arbitration through accepting the terms of the arbitration discharge. The court granted summary judgment to the defendants agency. However, the court vacated the class arbitration status and on all counts. It found that even if the plaintiff could substantiate award, finding the arbitrator lacked sufficient basis for assigning her account of a single racially tinged comment, the university class arbitration in light of the recent Supreme Court ruling in had sufficient cause for its decision to place her on academic Stolt–Nielsen S.A. v. AnimalFeeds International Corp., 130 S.Ct. probation and then for her dismissal from the residency program. 1758, 176 L.Ed.2d 605 (2010). The court found that the residency program had considerable evidence of “eccentric” behavior by the plaintiff to place her on Discipline academic probation. It also noted that residents were required to obtain medical licensure in Kentucky to proceed to the second Savoy v. Univ. of Akron, 15 N.E.3d 430 (Ohio Ct. App. year of the program; the plaintiff had not complied, despite 2014). An undergraduate student at the University of Akron got being given additional time and opportunity to do so. The court into a verbal altercation with a campus administrator. When the concluded that the university’s decision to allow the resident to administrator called campus police, the student was arrested on two remain employed without a signed contract, on a month-to-month outstanding warrants from the city. He was then issued a trespass- basis, while pursuing her licensure, did not constitute an implied ing warning and referred to the campus conduct office. During renewal of her contract on an annual basis. The court also found the campus conduct process, the student was found responsible that the state had not waived its sovereign immunity to be sued for violating a campus policy prohibiting disorderly conduct, and for an oral contract, as the plaintiff had claimed. was required to attend anger management classes. The student later filed several claims against the univer- Education Loans/Financial Aid sity. A trial court dismissed his charge of constitutional violations, citing lack of subject matter jurisdiction. On appeal, the In re Moss, 470 B.R. 505 (E.D. Wis. 2012). A Chapter 13 court dismissed the remainder of the student’s claims: of false debtor sought additional student loans under the “Fresh Start” arrest, as the student at the time had two valid outstanding arrest provisions of the Bankruptcy Act and an automatic stay granted in warrants; of defamation, as the allegedly defamatory statements conjunction with her bankruptcy. The court ruled that Sallie Mae were made during the student conduct process, which were did not violate either provision in denying the debtor additional absolutely privileged; and the breach of contract claim, because the student loans while waiting for her to cure her previous default. university lifted the registration hold when the student completed his campus judicial sanctions. Fourteenth Amendment Rights

Discrimination Carter v. Citadel Bd. of Visitors, 835 F. Supp. 2d 100 (D.S.C. 2011). A cadet was dismissed by a state military college for possess- Adams v. Montgomery Coll., 834 F. Supp. 2d 386 (D. ing and using “K2/Spice,” a form of synthetic marijuana, in his dorm Md. 2011). A student sued the defendant college pro se room. The cadet sued, alleging violation of his Fourteenth Amend- alleging violations of the Americans with Disabilities Act. The ment rights to due process. The court dismissed his claims, finding student suffered from severe disabilities, including multiple that the student had no legal expectation of counsel or that a college sclerosis. She made the college aware of this, as well as the follows formal chain-of-evidence rules in a student disciplinary lack of accessible handicap parking near her classrooms and the process. Furthermore, the court determined that expulsion for two inaccessibility of the campus bus system. The college agreed to semesters was not an arbitrary punishment for the offense under accommodate her by having her driven from the parking lot to institutional policy, and that the college had not violated its own her classes by campus security. After delivering the student to due process by suspending the disciplinary hearing while the drug her classes for one day, college security informed her that they was undergoing chemical testing and verification. would not be able to return her to her vehicle nor provide her with transportation in the future. While returning to her car, the student Sexual Harassment fell and suffered serious injuries. The court found that the student had stated a valid cause of action under the ADA, and that neither Hyman v. Cornell Univ., 834 F. Supp. 2d 77 (N.D.N.Y. the college nor its officers were exempt from liability under the 2011). A graduate student engaged in correspondence with a fac- Eleventh Amendment. ulty member during her application process to an anthropology program. After the communications by the student became inappropriate and sexual in nature, the professor demanded she cease contacting him and required her to sign a no-contact agreement, which she did. Later, in response to her perceived treatment by

Published monthly by the Education Law Association 197 Vol. 56, No. 12 School Law Reporter the department, she initiated harassment complaints against the Peterson v. Miranda / 188 professor. An investigation exonerated the professor and resulted Petrone v. Hampton Bays Union Free Sch. Dist. / 190 in additional restrictions imposed upon the student, whereupon Poole v. Univ. of North Carolina, Chapel Hill / 194 she filed complaints under Title IX and the New York Human Puchalski v. Depew Union Free Sch. Dist. / 191 Rights Law. The court dismissed all of the student’s claims, Purvis v. Grant Parish Sch. Bd. / 189 finding they were inadequate in claiming discrimination based Reed v. Florida Metro. Univ., Inc. / 195 on sex and retaliation. Reed v. Garden City Union Free Sch. Dist. / 184 Reyes v. New York City Dept. of Educ. / 186 Table of Cases Roney v.Allegheny Intermediate Unit / 183 Royster v. Laurel Highlands Sch. Dist. / 189 Rubano v. Farrell Area Sch. Dist. / 183 Adams v. Montgomery Coll. / 196 Ruppe v. Knox County Bd. of Educ. / 189 Allied Bldg. Products Corp. v. Strober / 195 Russo v. New York City Dep’t of Educ. / 191 Ass’n of Private Sector Colleges and Universities v. Duncan / Saliba v. Five Towns Coll. / 194 181 Savoy v. Univ. of Akron / 196 Babcock v. Walton Cent. Sch. Dist. / 185 Southfield Educ. Ass’n v. Southfield Bd. of Educ. / 188 Batchelor v. Rose Tree Media Sch. Dist. / 186 State of Florida v. E.M. / 185 Bd. of Educ. of City of Chicago v. Ill. Educ. Labor Relations State v. Bernard / 195 Bd. / 192 Sup’t-Dir. of Assabet Valley Reg’l Vocational Sch. Dist. v. Carter v. Citadel Bd. of Visitors / 196 Speicher / 192 Daubert v. Lindsay Unif. Sch. Dist. / 188 Taylor v. Huntsville County Bd. of Educ. / 191 Davenport v. Anne Arundel County Bd. of Educ. / 184 Thomas v. State of Ala. / 192 Davis v. Carmel Clay Schs. / 185 Townsend-Johnson v. Rio Rancho Pub. Sch. / 189 DeLuca v. Trs. of the Univ. of Penn. / 193 Troeller v. Dep’t of Educ. of the City of New York / 183 Desena v. North Shore Hebrew Acad. / 184 Turkish Coalition of Am. v. Bruininks / 193 Doe v. Univ. Healthcare Sys., LLC / 193 Tyler v. Trs. of Purdue Univ. / 194 Donus v. Garden City Union Free Sch. Dist. / 187 U.S. v. Boston Coll. / 195 Duncan v. Manning / 192 Visco v. Brentwood Union Free Sch. Dist. / 190 E.M. ex rel. E.M. v. Parajo Valley Unified Sch. Dist. / 186 Wallace v. Greenville Pub. Sch. Dist. / 191 E.M. v. New York City Dept. of Educ. / 186 Ward v. Bd. of Educ. Enlarged City Sch. Dist. of Middletown Ekdahl v. Indep. Sch. Dist. # 213 / 192 / 186 G.M. v. Alabama / 184 Washburn v. Kirk / 187 Garney v. Mass. Teachers’ Ret. Sys. / 192 Williams v. Weatherstone / 187 Gary Comm. Sch. Corp. v. Indiana Dep’t of Local Gov’t Fin. / Wood v. Williams / 181 187 Yager v. Massena Cent. Sch. Dist. / 190 Gilley v. Dunaway / 185 Hurst v. Kansas City, Missouri Sch. Dist. / 190 Hyman v. Cornell Univ. / 196 U.S. Supreme Court Docket I.K. v. Haverford Sch. Dist. / 187 In re Moss / 196 Jackson v. Murray State Univ. / 193 Summary of Court Action Reported from Jividen v. Univ. of Tenn. / 194 October 17, 2014 through November 15, 2014 Jolly v. Univ. of North Carolina at Wilmington / 194 Keitz v. Unnamed Sponsors of Cocaine Research Study / 193 Provided by Spencer Weiler and Christine Kiracofe Kewley v. Dep’t of Elem. and Secondary Educ. / 189 Khachatourian v. Hacienda La Puente Unif. Sch. Dist. / 189 Cases Decided Kimble v. Illinois State Bd. of Educ. / 191 Mallory v. Brigham Young Univ. / 193 None. Marson v. Thomason / 187 Mason v. Bd. of Trs. of the Univ. of Ill. / 194 Cases Awaiting Decision McCray v. Carter / 190 after Oral Argument McGlone v. Bell / 195 Mirabilio v. Reg’l Sch. Dist. 16 / 190 Munion v. Trs. of Columbia Univ. / 193 None. Nixon v. Hardin County Bd. of Educ. / 184 Parker v. Lyons / 188 Certiorari Granted Peavey v. Univ. of Louisville / 196 People v. Lofchie / 194 None.

Cases Recently Filed occurred. As a result, both employees were terminated. The basis for Lembaris’ claim is that there were other, younger employees No. 14-354. Bronx Household of Faith v. Bd. of Educ. of the who did the same thing with the timekeeping system, but they City of N.Y., 750 F.3d 184 (2d Cir. 2014). In 1994, a Christian were not terminated. Also, according to Lambaris, the University church, the Bronx Household of Faith, applied to rent out the hired a younger person to replace her. The defendants filed a auditorium of a New York City public school for the purpose of motion for summary judgment alleging the plaintiff failed to provide holding religious worship services. This initial request was denied evidence to establish a prima facie case of age discrimination. The in accordance with state and district policies which forbade outside district court granted the summary judgment for the defendants. organizations from conducting religious services or instruction The U.S. Court of Appeals for the Second Circuit affirmed the on school premises. The church filed suit, which ended with an lower court’s ruling. unsuccessful petition for certiorari to the Supreme Court in 1998. In 2001, the Supreme Court ruled on a similar use of facilities by a No. 14-422. Young-Gibson v. Bd. of Educ. of City of Chicago, religious organization case in Good News Club v. Milford Central 558 Fed. App’x 694 (7th Cir. 2014). Shortly after being hired as School. The Court held in Good News Club that a (different) New the principal of Percy L. Julian High School in the Chicago Public York school district violated the religious club’s First Amendment School System (CPS), Young-Gibson began to clash with her rights when their request to use public school space was denied supervisors. The first clash centered on a teacher at Julian, T.D., based on their religious viewpoint. Shortly after the High Court’s whom the school board had voted to suspend for inappropriate decision, the Bronx Household of Faith plaintiffs returned to court, interactions with students. Young-Gibson conducted her own citing Good News Club, and were granted a preliminary injunc- investigation and, as a result of this effort, informed the CEO of tion permitting them to use a local school auditorium for holding CPS that the allegations were “false, baseless, and uncorroborated” weekend worship services. While the church was holding services and that she would “rescind” the suspension. She allowed T.D. into permitted under the injunction, the policy language addressing the school building, despite the fact that T.D. was suspended. As worship services was altered by the school district; however, in a result, Young-Gibson was suspended by the board of education 2005 the preliminary injunction was converted into a permanent for 20 days without pay for gross insubordination. At this same injunction and the church was granted summary judgment by the time, Julian High School was placed on probation as a result of district court. In 2007, a divided Second Circuit Court of Appeals low student scores, and Young-Gibson was informed that she vacated the injunction. On remand, the district court permanently could be moved at any point as a result of this probation. In her enjoined the school district from enforcing the “no worship” rental second school year as principal at Julian, she was suspended policy. However, a divided Second Circuit Court of Appeals, in for another 10 days without pay for refusing to reply to emails 2011, ruled on the revised policy language, finding that it did “[n] from her supervisors. Eventually, she was reassigned to a posi- ot constitute viewpoint discrimination because it does not seek tion within the district offices as a result of her refusal to work to exclude expressions of religious points of view or of religious with her supervisors. At the end of the second school year, she devotion, but rather excludes for valid non-discriminatory reasons was terminated. Young-Gibson claimed she was terminated due only a type of activity—the conduct of worship services.” Appel- to her race, gender, and as retaliation for protected actions. The lants’ second petition for certiorari was denied in December 2011. defendants filed a motion for summary judgment, which was However, in 2012, Bronx Household of Faith petitioners returned granted by the district court. On appeal, Young-Gibson dropped to court seeking a mandatory preliminary injunction related to the discrimination claims and focused her wrongful termination appellants’ Free Exercise rights (an issue not addressed by the claim on retaliation and due process issues. The U.S. Court of Second Circuit Court when it vacated the injunction and granted Appeals (7th Circuit) affirmed the district court’s ruling. summary judgment). The district court granted the injunction, but was reversed (once again) by the Second Circuit. Presently, peti- No. 13-1547. Ridley Sch. Dist. V. M.R., 744 F.3d 112 (3d tioners ask the Court to determine whether “a government policy Cir. 2014). E.R., a female student with learning disabilities and expressly excluding ‘religious worship services’ from a broadly health-related issues, began her education at Grace Park Elemen- open forum violate[s] the Free Exercise clause and Establishment tary School in the Ridley School District. She attended school at clause . . . [or] the Free Speech clause.” A brief of amicus curiae Grace Park for two years, kindergarten and first grade. During was filed by three entities, and an order given to extend the time to the summer after first grade, E.R.’s parents unilaterally enrolled file a response to the petition up to and including January 12, 2015. her in a private school that specialized in educating students with learning disabilities. The parents justified this action by claiming No. 14-420. Lembaris v. Univ. of Rochester, 566 Fed. App’x that her individualized education program (IEP) was unsuitable 89 (2d Cir. 2014). Lembaris filed suits against the University of for her academic needs. Ridley officials refused E.R.’s parents’ Rochester, her former employer, claiming discrimination on the request to pay for the private school tuition. The conflict went to basis of age. In 2008, the University hired the forty-nine-year-old an administrative hearing officer, who ruled that E.R.’s IEP was as a data control clerk. In 2011, Naomi Smith became Lembaris’ lacking during her first grade school year and that, as a result of immediate supervisor. Smith received a complaint that Lembaris the IEP, E.R. was denied a free appropriate public education. The was misusing the timekeeping system and initiated an investigation. school district appealed the hearing officer’s ruling, which was During the investigation, Lembaris and another clerked admitted eventually reversed by a federal district court. However, the parents to having one person clock the other person out even though the asked that Ridley officials pay for the tuition while awaiting the second person had left work early. However, both employees hearing officer’s ruling due to the requirements of the stay-put admitted to manipulating the timekeeping system once. Smith’s provision of IDEA. The questions before the court were whether investigation identified a second time where the same actions parents are eligible for reimbursement for private school costs

Published monthly by the Education Law Association 199 Vol. 56, No. 12 School Law Reporter if they do not file a claim seeking payment until after a court as ruled in favor of the school district, and 2) whether parents’ rights New from Education Law Association — to interim funding extend through the time of a judicial appeal. The district courted ruled in favor of the plaintiffs as a result of 2014 Supplement to A Digest of the stay-put provision, determining that E.R. could not be moved Supreme Court Decisions from the private school until the first claim was properly adjudi- cated. The Court of Appeals affirmed the district court’s ruling. Affecting Education, 5th Edition On October 6, 2014, the Court invited the Solicitor General to Perry A. Zirkel and file a brief in this case expressing the views of the United States. Mark F. Walsh This supplement to A Digest of Certiorari Denied Supreme Court Decisions Affecting Education, Fifth Edition, like the full No. 14-218. D. D-S v. Southold Union Free School Dist., 506 volume, is designed as a ready Fed. App’x 80 (2d Cir. 2012). D. D-S’s daughter, B, is a student reference, not as legal analysis. with a learning disability. During the 2008-2009 school year, B It provides a current and concise was being educated in the Southern Union Free School District. set of individual case summaries B’s mother claimed the school district failed to provide B with a of United States Supreme Court free appropriate public education (FAPE), and unilaterally moved d e c i s i o n s f r o m l a t e 2 0 0 9 t h r o u g h B to a restrictive private school in Massachusetts and sought June 30, 2014. Cases cited are tuition reimbursement from the school district. The school district, s p e c i fi c t o d e c i s i o n s t h a t d i r e ctly although admitting that B was denied FAPE, refused to pay for a f f e c t t h e gove r n a n ce , s t a f f , a n d / the tuition of the private school, claiming that school also failed Monograph No. 90 or students in K-12 public and to meet the FAPE standards. An arbitrator heard the arguments ISBN-10: 1-56534-164-3 private schools. and sided with the school district. D. D-S filed a lawsuit in federal ISBN-13: 978-1-56534-164-7 district court, which also sided with the school district. That ruling Paperback, 48 pages $21.99 Member price $14.29 was appealed to the U.S. Court of Appeals for the Second Circuit, which ruled in favor of the school district because D. D-S failed to meet the burden of proving that the private school was appropriate, Buy both books together and save! even though B’s grades were improving at the private school. On November 3, 2014, the Supreme Court denied certiorari. Package price $59.99 ELA Member Price $38.99 No. 14-193. David Monn, et al. v. Gettysburg Area School Dist., 553 Fed. App’x 120 (3d Cir. 2014). Three minor children and their parents brought suit alleging bullying and injury at A Digest of Supreme Court middle school, asserting the school district “sometimes criticized Decisions Affecting Education, and belittled them to deflect their responsibilities to supervise and curtail the misconduct of the minor defendant.” On appeal from 5th Edition (2009) the District Court, the Third Circuit Court of Appeals considered Perry A. Zirkel claims of First Amendment retaliation and Fourteenth Amend- ment due process. The court did not consider the District Courts A Digest of Supreme Court Deci- dismissal of the Fourth Amendment claim as it was not brought sions Affecting Education p r o v i d e s up on appeal to the Circuit Court. The Circuit Court affirmed the a c o m p r e h e n s i v e c a n v a s s i n g o f a l l U.S. Supreme Court decisions District Court in dismissing both claims. On November 3, 2014, directly affecting policies and the Supreme Court denied certiorari without comment. practices of K-12 schools. The Fifth Edition, published in 2009, covers more than 350 Supreme Court decisions. Chapters con- cern governance issues, church- state cases, student rights and responsibilities, employee mat- ters, issues of discrimination, special civil rights rulings, and Monograph No. 80 procedural parameters. ISBN-10: 1-56534-140-6 ISBN-13: 978-1-56534-140-1 $49.99 Paperback, 318 pages Member price $32.49

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Now available from Education Law Association — The Yearbook of Education Law 2014

Charles J. Russo, Editor The Yearbook of Education Law, published annually, is a hardcover volume that contains analyses of the previous year’s federal and state court decisions affecting private and public elementary and secondary schools and higher education. It covers all aspects of education law and includes a detailed index and table of cases (alphabetical and by jurisdiction). The 2014 edition contains twelve chapters, featuring twenty chapter authors. ISBN-10: 1-56534-163-5 ISBN-13: 978-1-56534-163-0 Hardcover, 336 pages

Chapters/Chapter Authors:

1. Employees Ralph D. Mawdsley & James L. Mawdsley 2. School Governance Regina Umpstead & Michelle McKeown 3. Students Justin M. Bathon & Joe Dryden 4. Bargaining Jeffrey S. Greenley 5. Students with Disabilities $74.99 Susan C. Bon & Allan G. Osborne, Jr. (ELA Member Price $48.74) 6. Torts Allison S. Fetter-Herrott 7. Sports Kevin P. Brady 8. Students in Higher Education Celebrating 60 years Joy Blanchard & Elizabeth T. Lugg as the premier source 9. Federal and State Legislation of information on David L. Dagley & Amy L. Dagley 10. Education Law in Canada education law Gregory M. Dickinson & Nora M. Findlay 11. Education Law in Turkey Ricardo Lozano Yearbooks for 2000-2013 are available, with reduced 12. Education Law in Brazil pricing on previous editions. Call for information. Nina Ranieri & Erik Arnesen

Order online from the ELA Bookstore at www.educationlaw.org or contact ELA: 2121 Euclid Avenue LL212, Cleveland, OH 44115 Phone: 216-523-7377 Fax: 216-687-5284 [email protected]

Published monthly by the Education Law Association