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School Law Reporter December 2014

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School Law Reporter December 2014 Education Law Association The premier source of inform ation 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 Regional Reporters 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. Patrick D. Pauken......................................................President Cate K. Smith.............................................Executive Director Patricia Petrusky........................................Member Services Pamela Hardy......................................Publications Specialist 2121 Euclid Avenue, LL212 • Cleveland, Ohio 44115-2214 Phone: 216-523-7377 • Fax: 216-687-5284 Email: [email protected] Website: www.educationlaw.org 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
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