The premier source of information on education law - Est. 1954 - … · 2017. 6. 22. · Contents...

Contents – January/February 2017

Charter Schools/Alternative Schools

Boyd v. Hawaii State Ethics Comm’n, 378 P.3d 934 (Haw. 2016). A charter school administrative assistant was accused of violating the state ethics code by rec-ommending school purchases from his business. As the result of a hearing, the state ethics commission found him responsible for twenty ethics code violations, resulting in a $10,000 administrative fine. On appeal to the circuit court, it affirmed the admin-istrative assistant’s status as a state employee and the purchases he approved to his business. However, the court reversed the commission’s determinations relating to his receiving compensation for the improper purchases. The appellate court agreed that he was a state employee for purposes of the statute and upheld the violations relating to the purchases he authorized as a state employee.

The Hawaii Supreme Court vacated the previous judgments against the adminis-trative assistant. It held that, at the time of the alleged behavior, there were conflicting conflict of interest statutes for charter school employees. In light of the inconsistency, the court reasoned that the commission did not have authority to adjudicate proceed-ings against the administrative assistant for violations of the state ethics code. Because charter school districts were allowed to create and maintain their own ethics codes, such provision superseded the applicable state ethics code. Specifically, because the charter school created and maintained its own ethics code under the law, the administrative assistant was covered under it rather than the state’s ethics code. – Benjamin White

Hairr v. First Jud. Dist. Ct., 368 P.3d 1198 (Nev. 2016). Parents of children who attended public schools challenged the constitutionality of a senate bill which provided a grant to a child who received education from an entity other than a public school. Petitioners, parents seeking to apply for the grants, moved to intervene in trial court. The

Editors’ Note / 1Elementary and Secondary Education / 1 Charter Schools/Alternative Schools / 1 Noncertified Employees / 3

Contracts, Salary & Benefits / 3Discrimination / 3Dismissal, Nonrenewal & RIF / 3First Amendment Rights / 4

Pupils / 4First Amendment Rights / 4 Fourteenth Amendment Rights / 4Fourth Amendment Rights / 6Law Enforcement / 6Sexual Harassment / 6Students with Disabilities / 8

School Boards / 13Financial Affairs / 13Open Meeting Law / 14Tort Liability / 14

School Districts / 14Constitutional Rights / 14Desegregation / 15Labor Relations / 15Property and Contracts / 16Sunshine Laws & FOIA/ 16Taxation/Funding / 16Tort Liability / 17

Teacher & Administrator Employment / 18Contracts, Salary & Benefits / 18Discrimination / 18Dismissal, Nonrenewal & RIF / 20First Amendment Rights / 21

Higher Education / 21Athletics / 21Board of Trustees / 21

Financial Affairs / 21Jurisdiction/ 22Tort Liability / 22

Community Colleges / 23Contracts, Salary & Benefits / 23Financial Affairs / 23First Amendment Rights / 24

Nonacademic Personnel Employment / 24Discrimination / 24Employee Misconduct / 24Tort Liability / 24

Professor & Administrator Employment / 25Discrimination / 25

Students / 25Admission and Retention Criteria / 25 Contracts / 25Discipline / 26Discrimination / 26Dismissal / 27FERPA / 27First Amendment Rights / 28Sexual Harassment / 28

Volume 59 | Nos. 1 & 2 | January and February 2017

www.educationlaw.org

Elementary and Secondary Education

Editors’ NoteAs we begin another year, we want to

thank the new members of the School Law Reporter team and express our deep grati-tude to those who have served for longer terms—some for much longer terms!

We welcome the first Case Commentary submitted by one of our newer ELA mem-bers, Adam Ross Nelson. Writing such an expanded case summary with commentary is an ideal way to start your publications work with ELA. Let us know if you are interested.

Regional Reporters / 2Table of Cases / 28U.S. Supreme Court Docket / 30Case Commentary / 34

Coyne v. Walker, 2011 Wisconsin Act 21, by Adam Ross Nelson, University of Wisconsin

New Publications Available from the ELA Bookstore / 36

Contents, continued

School Law Reporter

Education Law AssociationThe premier source of inform ation on education law - Est. 1954 -

SLR

School Law Reporter January & February 2017

Published by the Education Law Association

22

Regional Reporters

Education Law Association • 2121 Euclid Ave. LL212, Cleveland, Ohio 44115 Phone: 216-523-7377 • Fax: 216-687-5284 • Email: [email protected] • www.educationlaw.org

Federal Courts

U.S. Supreme Court .................................................... Christine KiracofeNorthern Illinois University

Spencer WeilerUniversity of Northern Colorado

Court of AppealsFirst Circuit ......................................................................... David Dagley

University of AlabamaSecond Circuit .............................................................. Kathryn McCary

Law Office of Kathryn McCaryThird Circuit ...................................................................Bonnie Hoffman

Hangley Aronchick Segal, Pudlin & SchillerFourth Circuit ................................................................Jennifer Sughrue

Southeastern Louisiana UniversityLisa Driscoll

University of Tennessee-KnoxvilleRegina Biggs

George Mason University Fifth Circuit ................................................................R. Stewart Mayers

Southeastern Oklahoma State UniversitySixth Circuit ............................................................................... Betty Cox

University of Tennessee at MartinSeventh Circuit ..................................................................Suzanne Eckes

Indiana UniversityEighth Circuit .............................................................R. Stewart Mayers

Southeastern Oklahoma State UniversityNinth Circuit ........................................................................ David Dagley

University of AlabamaTenth Circuit ........................................................................ Traci Ballard

University of Oklahoma-TulsaEleventh Circuit ............................................................Jennifer Sughrue


University of Tennessee-KnoxvilleFederal Supplement ....................................................R. Stewart Mayers

Southeastern Oklahoma State UniversityRobert Hachiya

Kansas State UniversityPhillip Buckley

Southern Illinois University-EdwardsvilleCatherine Robert

University of Texas at San AntonioChuck Noland

Noland Law OfficeBarbara Qualls

Stephen S. Austin State UniversitySteven Nelson

University of MemphisBrett Geier

Western Michigan UniversityCassie Blausey

Kentucky Department of Higher Education

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

Lynn Rossi Scott.........................................................PresidentCate K. Smith...............................................Executive DirectorPatricia A. Petrusky.......................................Member ServicesPamela J. Hardy.....................................Publications Specialist

Susan BonUniversity of South Carolina

[email protected]

Patrick PaukenBowling Green State University

[email protected]

Co-Editors

The School Law Reporter contains citations and summaries for 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. A Case Index is published annually. ELA members can access cases via the SLR Express, a searchable online database with all the cases that have appeared in School Law Reporter.

Joe DrydenTexas Wesleyan University

Brittany LarkinAuburn University

Higher Education Federal Cases ................................................................... Luke Cornelius

University of North FloridaJoseph McNabb

Northeastern UniversityBarbara Qualls

Stephen F. Austin State UniversityThomas Graca

Harvard Law School State Cases...........................................................................Elizabeth Lugg

Illinois State UniversityMarilyn Anglade

Florida State UniversityStephen WorthingtonPenn State University

State Courts Southern ........................................................................Gretchen Oltman

Creighton University Northwestern ...........................................................................Rick Geisel

Grand Valley State University Northeastern .........................................................................Janet Decker

Indiana University Southwestern .........................................................................Michael Tan

William Woods UniversityRebecca Schlosser

Sul Ross State University Southeastern ................................................................. Jennifer Sughrue


University of Tennessee-KnoxvilleMary Kay Bacallao

Mercer University Pacific ..................................................................... .........Benjamin White

University of California-San Diego Atlantic .............................................................................Luke J. Stedrak

Seton Hall UniversityAndrew Armagost

Penn State University, PA State Senate New York............................................................................Jeanne Surface

University of Nebraska-OmahaMaureen Fox

Sacred Heart University

©2017 by the Education Law Association (ELA). Federal copyright law restricts reproduction of material from this journal without prior written permission from the Educa-tion Law Association. ISSN 1059-4094

Any opinions expressed or implied are those of the editors and may not represent official positions of the Education Law Association

Thanks to Lauren Holler and Joseph Nelson, from the Cleveland-Marshall College of Law, for helping us reduce our backlog of case summaries.

Vol. 59, Nos. 1 & 2 School Law Reporter3

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court denied their request for intervention because petitioners did not show that their interest in upholding the constitutionality of the senate bill was inadequately represented by the State. Petitioners filed a writ of mandamus to compel the district court to grant their application to intervene, claiming that the court abused its discretion. The Supreme Court of Nevada af-firmed the trial court’s decision, reasoning that the trial court’s decision to invite petitioners to submit briefs as amici curiae was an adequate alternative to intervention. – Joseph Nelson

Noncertified Employees

Contracts, Salary & Benefits

Boone v. New York City Dep’t of Educ., 38 N.Y.S.3d 711 (N.Y. Sup. Ct. 2016). The petitioner brought suit to reverse the defendants’ denial of the security clearance necessary to become a school bus attendant, which was based on Boone’s conviction for petit larceny in 2010. The defendants moved to dismiss, claiming that Boone would pose a risk to the school community due to her prior conviction. The court looked at Article 23-A of the Correction Law, which disallows employers to deny employment or a license to an applicant based solely on the applicant’s status as an ex-offender. There needs to be a direct relationship between the offense and the position and/or license sought. Finding no such relationship and determining that the actions of the defendant were arbitrary and capricious, the court ordered that the denial be annulled and the petitioner’s application for a security clearance be processed expeditiously without regard to her prior conviction. The issue of damages was severed until the petitioner submits additional briefing and itemized invoices addressing damages owed. – Maureen Fox

Discrimination

Rodgers v. Gary Cmty. Sch. Corp., 167 F. Supp. 3d 940 (N.D. Ind. 2016). Latanya Rodgers, a custodian employed by Gary Community School Corporation (GCSC), was sexually assaulted by a coworker while on the job and allegedly suffered from post-traumatic stress disorder as a result of the attack. Prior to Rodgers’ returning to work, the workers’ compensation mental health treatment provider issued a letter with several recommendations to ease the transition. Requested accommo-dations included proper lighting in the parking lot, a partner system for custodial assignments so a custodian is not left alone in the building, and a team approach to exiting the building and for taking out garbage. Following her release from medical care, Rodgers returned to work; however, within two weeks she was treated in the emergency department at a hospital for a stress-related episode. Rodgers stated the exterior lights had not been sufficiently repaired and that she was expected to take the garbage out alone. After receiving a right-to-sue notice from the EEOC, she filed suit on three counts: (1) violation of her right to reasonable accommodations under the Americans with Disabilities Act; (2) Title VII retaliation due to her being denied a promotion; and (3) intentional infliction of emotional

distress. The court granted the defendant’s motion for summary judgment regarding counts 2 and 3, finding that Rodgers did not establish that GCSC retaliated or intentionally inflicted emotional distress. Count 1 remained pending, however. The court found a disputed question of fact as to whether GCSC was aware of Rodgers’ disability, and an additional genuine dispute regarding whether there was an interactive process between parties, as required for implementing reasonable ac-commodations. – Catherine Robert

Pediford-Aziz v. City of New York, 170 F. Supp. 3d 480 (S.D.N.Y. 2016). After exhausting administrative remedies and receiving a right-to-sue letter from the EEOC, Pediford-Aziz, a security guard, filed a complaint against the City of New York, the New York Department of Education (DOE), and several defendants in their individual capacities, alleging retaliation in violation of the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL). After settling a prior disability discrimination complaint against the DOE, Pediford-Aziz lost her special patrolman designation, due to an unrelated arrest, and was suspended by the DOE because a special patrolman designation was a condition of employment. After the criminal charges were dismissed, Pediford-Aziz’s special patrolman designation was reactivated, but the DOE did not reinstate her for almost four months; during this time, officials offered a series of shifting excuses. Later that year, after reinstatement, Pediford-Aziz filed for medical leave under the Family Medical Leave Act (FMLA), which was approved through February, but she did not return to work after the ap-proved leave period and was subsequently terminated, in June. The federal court for the Eastern District of New York held that the actions of the city officials in terminating the plaintiff did not amount to retaliatory animus because Pediford-Aziz effectively abandoned her position for several months. However, the allegations were sufficient to plead a connection between the prior disability discrimination lawsuit and the four-month delay in reinstatement. As a result, the defendant’s motion to dismiss was granted in part and denied in part. – Joe Dryden

Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205 (5th Cir. 2016). Kandice Pullen filed a Title VII lawsuit claiming she was sexually harassed while an employee of the school district. Pullen reported sexually explicit remarks and inappropriate touches by her supervisor, Timothy Graham, for part of her time with the district. The district court granted the school district’s motion for summary judgment. The Fifth Circuit reviewed, individually, Pullen’s claims during the time Graham was her supervisor and her time with the district after Graham ceased being her supervisor. The court reversed the district court for claims during the time Graham was Pullen’s supervisor, and affirmed her remaining claims. – Stewart Mayers

Dismissal, Nonrenewal & RIF

Atlanta Indep. Sch. Sys. v. Wardlow, 784 S.E.2d 799 (Ga. Ct. App. 2016). Wardlow, a testing coordinator who oversaw



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$10,000 on the school district. After the MIOSHA report and citations were issued, the plaintiff continued to warn cowork-ers and members of the public about the hazard. The plaintiff received a second letter of reprimand in September 2014, referencing not only allegations of false statements, but also absenteeism and creating an unfriendly work environment. The letter stated that she would face further discipline, including discharge, if she had any such conduct. The plaintiff then filed suit, setting forth claims of First Amendment violations on theories of retaliation and prior restraint.

The court determined a jury could conclude that the plain-tiff was speaking as a citizen on a matter of public concern. It held that the evidence could support a jury finding the plaintiff had factual and serious concerns, and she acted prudently and commendably in voicing her concerns, rejecting the defendant’s argument that the plaintiff’s speech was limited to merely a “janitor discussing her cleaning duties.” The public interest in ensuring the plaintiff was able to voice her concerns outweighed any interest the school district had in suppressing her speech.

Although the plaintiff was still employed by the district, the court also held that a jury reasonably could conclude that she was subjected to an adverse action in the form of the second letter of reprimand warning her she could be fired if she contin-ued to engage in the protected speech. Both reprimands stated they were given because of the plaintiff’s speech, supporting a finding that the protected speech was the cause of the action. The same evidence also supported her claim of prior restraint.

Finally, the court denied qualified immunity to the su-perintendents who wrote the letters of reprimand. The court noted that the threat to fire her was in direct response to her public warnings about a serious health hazard they were aware existed, and a reasonable jury could conclude a reasonable official would have known they committed blatant violations of the plaintiff’s rights. – Robert F. Hachiya

Pupils

First Amendment Rights

Brinsdon v. McAllen Indep. Sch. Dist., 832 F.3d 519 (5th Cir. 2016). After being instructed by her Spanish teacher to recite the Mexican Pledge of Allegiance and to sing the Mexican National Anthem, Brinsdon refused and was given an alternative assignment, on which she received a grade of C. She filed suit, claiming a violation of her rights to free speech and her rights under the Equal Protection Clause. The district court granted summary judgment to the school district on some claims and, following trial, entered judgment as a matter of law on the remaining claims. Brinsdon appealed. The Fifth Circuit affirmed the trial court’s decision, including the protection of school officials under qualified immunity. – Stewart Mayers

Fourteenth Amendment Rights

L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235 (3d Cir. 2016). A parent of a kindergarten student brought a Section

test security, assigned proctors, and coordinated inspection of all completed tests, was not renewed after the school system found an unusual amount of wrong-to-right erasures, causing the school system to lose confidence in Wardlow’s ability as a test coordinator. The tribunal further concluded that the circumstances constituted other good and sufficient cause under the Fair Dismissal Act which justified nonrenewal, and the state board of education affirmed. However, the superior court reversed, holding that the state board’s decision was not based upon any competent or probative evidence.

A Georgia appellate court reversed the lower court’s de-cision, reasoning that courts should give great weight to the interpretation adopted by the administrative agency charged with enforcing its statute when statutory provisions are am-biguous. Specifically, the court should not interfere with the agency’s interpretation unless it grossly abused its discretion or acted arbitrarily or contrary to law. The court concluded that neither the local board’s nonrenewal decision, nor the state board’s interpretation of the Fair Dismissal Act, was arbitrary or constituted a gross abuse of discretion. – Joseph Nelson


Ely v. Dearborn Hts. Sch. Dist. No. 7, (E.D. Mich. 2015), aff’d, 2016 U.S. App. LEXIS 13533 (6th Cir. July 22, 2016). A summer custodian filed suit against the Dearborn Heights school district after she was disciplined for speaking out about possible asbestos contamination at a school where she worked in 2012. Concerned after hearing that tiles contained asbestos and learning that a former employee who “sanded tiles for years” had died of mesothelioma, she was told by a supervisor that “sanding tiles would be fine,” but to collect a sample of dust for testing. The custodian was concerned that during the summer months numerous employees and students were present in the building. In March 2013, she received a copy of a report that she believed was inauthentic because it was unsigned and contained several errors. The plaintiff then contacted the Michigan Occupational Safety and Health Administration (MIOSHA) and filed a complaint stating her concerns about the possible asbestos hazard. Additionally, she discussed her concerns with family members, coworkers, and other members of the community, and was interviewed by a local television reporter. In May 2013, she was told by a MIOSHA investigator that samples tested positive for asbestos, and that the agency was going to issue citations to the school district for safety and health violations. The next day, the superintendent sent a memorandum to all employees stating that there were no asbestos hazards and citing negative test results from the 2012 report.

The plaintiff then received a letter of reprimand from the superintendent directing her to stop spreading “false rumors” about asbestos hazards in the district schools. In June 2013, the plaintiff received a letter from MIOSHA stating its investigation revealed conditions that were determined to be in violation of the Michigan Occupational Health Standards. The violations were noted as serious, and the agency imposed a fine of over


All rights reserved

the assistant baseball coach. Additionally, he argued that the board violated the student’s constitutional rights by creating and being deliberately indifferent to a sexualized, violent culture at the school. The U.S. District Court for the Southern District of Ohio granted summary judgment for the board, and the parent appealed.

An argument between K.R., a freshman, and another student caught the attention of assistant baseball coach Sou-kup, who allegedly told an older student, B.C., to “take care of it.” Thereafter, B.C. and three other students approached K.R. in the hall, held him down, and B.C. inserted his finger into K.R.’s anus. K.R. and his parents reported the incident to the assistant principal and, following an investigation, the students who assaulted K.R. were disciplined. During this time, evidence showed that some high school coaches were aware of student-on-student hazing.

The court affirmed the lower court’s granting of summary judgment for the board because the board lacked the policy of deliberate indifference required for municipal liability under Section 1983. Despite the fact that school officials were aware of student bullying and sexual abuse and failed to stop it, the board could not foresee that any coach would allow sexual assault to be utilized for discipline purposes. Nonetheless, pursuant to Coach Soukup’s “take care of it” comment, a state-created danger theory of liability for the board existed. – Betty Cox

Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d 179 (D. Conn. 2016). Doe filed suit against the school and various individual school officials, alleging a violation of the Equal Protection Clause as a result of having been the victim of bul-lying at Torrington High School. The plaintiff asserted a claim of a state-created danger. The court directed each party to brief the question of whether or not the case should be dismissed for failure to exhaust administrative remedies, and permitted Doe to file an amended claim against one school official due to the existence of new evidence. Further, the court held that exhaustion of administrative remedies was not required for filing action in court since the claim was filed as an Equal Protection Clause claim and not under IDEA. – Stewart Mayers

Doe v. Southeast Delco Sch. Dist., 140 F. Supp. 3d 396 (E.D. Pa. 2015). A fifth-grade school teacher with a history of inappropriately touching students was transferred by the school district’s superintendent to teach second grade following ad-ditional complaints of the same conduct. In this case the minor plaintiffs, claiming the teacher inappropriately touched them, brought a Section 1983 action against employees of the school district where the teacher’s sexual abuse took place, as well as the school district itself, alleging that the superintendent, acting on behalf of the school district, failed to direct and train school officials to appropriately respond to sexual abuse allega-tions against school employees, and that defendants placed the minor plaintiffs at risk of the abuse they suffered by failing to adequately report, supervise, or discipline the teacher.

The U.S. District Court for the Eastern District of Penn-sylvania denied the motion to dismiss the plaintiffs’ Section 1983 claim. Further, the state-created danger claim was met

1983 action against the school district, school reform com-mission, and a teacher, alleging a violation of the student’s Fourteenth Amendment rights under the state-created danger theory. Specifically, the student claimed she was sexually as-saulted after the teacher allowed her to leave the classroom with an unidentified adult. The parent alleged that by releasing her daughter, the teacher created the danger that resulted in the student’s physical and emotional harm. The defendants moved to dismiss, arguing that the complaint did not allege a constitutional violation and, even if it did, the teacher was entitled to qualified immunity. The district court denied the defendants’ motion, explaining that “ordinary common sense and experience dictate that there is an inherent risk of harm in releasing a five-year-old [child] to an adult stranger who has failed to produce identification and authorization for release despite being asked to do so.” 836 F.3d at 240. The defendants appealed.

On appeal, the court found that the allegations met all of the elements required to support the claim under the “state-created danger” exception to the general rule that substantive due process imposes no duty on states to protect their citizens from private harm. First, the court found that the teacher made affirmative use of authority that created or increased danger to his student, where the teacher surrendered the state’s respon-sibility for student safety by releasing her to an unidentified adult, thereby terminating her access to the school’s care. Second, the court found that the risk of harm presented by the teacher’s release of the student was obvious, where, based on teacher’s experience and common sense, it was foreseeable that releasing a student to an unidentified adult could result in harm to the student, and the harm that befell the student was fairly direct. Third, the risk of harm presented by the teacher was so obvious as to rise to level of deliberate indifference. School policy prohibited release of students to any adult without proper documentation, and the teacher initially asked adult for identification, thus showing both school officials’ and teacher’s awareness of inherent danger in the release. Fourth, the court found that the student and her teacher had a sufficient relationship to find that the student was a foreseeable victim. The student was a member of the discrete class of kindergarten children for whose benefit the school district had instituted the release policy.

In addition, the court found that the teacher did not have qualified immunity, because the student’s right, to not be removed from a safe environment and placed into one in which it was clear that harm was likely to occur, was clearly established at time of the teacher’s actions. These actions were sufficiently analogous to prior cases that should have placed a reasonable official on notice that his actions were unlawful. – Bonnie Hoffman

Richardson v. Huber Heights City Schs., 651 Fed. App’x 362 (6th Cir. 2016). On behalf of himself and his son, K.R., a parent filed a Section 1983 action against the school board based on the allegation that the minor was sexually assaulted by fellow high school students with the tacit permission of



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as to the assistant superintendent. However, the court ruled, the school district and its superintendent were not proper de-fendants for the state-created danger claim because its policy or custom was not the moving force behind a constitutional violation. – Joseph Nelson

Fourth Amendment Rights

A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016). The plaintiff-appellant filed this action under 42 U.S.C. § 1983, on behalf of her minor child, against two employees of the Albuquerque Public Schools—specifically, Cleveland Middle School (“CMS”) Principal Susan LaBarge and Assistant Prin-cipal Ann Holmes—and against Officer Arthur Acosta of the Albuquerque Police Department (“APD”). The plaintiff brought several claims stemming from two school-related events: (1) the May 2011 arrest of F.M., the plaintiff’s daughter, for alleg-edly disrupting a physical education class based on a state law prohibiting interference with the educational process, and (2) a November 2011 search of F.M. for contraband. Notably, the plaintiff objected to the student being placed in handcuffs and detained. Holmes and LaBarge sought summary judgment on the basis of qualified immunity, and the district court granted their respective motions. The court also denied the plaintiff’s motion for summary judgment on her claims pertaining to Acosta after determining that the officer was entitled to prevail on qualified immunity grounds. On appeal, the Tenth Circuit Court of Appeals affirmed. – Traci Ballard

Law Enforcement

Matter of R.D., 486 S.W.3d 130 (Tex. App. 2016). The appellate court held there was sufficient evidence to support the trial court’s finding that a juvenile committed the offense of exhibition of a firearm on school property by threat. Whether the juvenile had the capacity to carry out the threat was imma-terial, and the campus police officer against whom the threats were directed need not be present when the threats were made to find sufficient evidence. The court reasoned that the Texas Education Code’s exhibition of firearms statute was similar to the terroristic threat statute in that “both statutes require that there be a threat and the intent to place another in a disturbed state of mind.” Accordingly, the court concluded that because evidence demonstrated that the juvenile repeatedly stated he was going to “kill” the officer by bringing a gun to school, and that he was going to “shoot” the officer, a reasonable inference supported the trial court’s finding that the juvenile intended to alarm the officer, in violation of the statute. – Lauren Holler

Sexual Harassment

Jankowski v. Lellock, 649 Fed. App’x 184 (3d Cir. 2016). A former middle school student brought a Section 1983 action against a school police officer, principal, and detention aide for violation of his right to bodily integrity, secured by the Due Process Clause of the Fourteenth Amendment. The student al-

leged that the aide and principal knew, or should have known, that the school police officer was sexually abusing students because the officer pulled male students out of detention over the course of the school year to talk to them individually, in violation of district policy. The student further alleged that the principal failed to properly train teachers regarding the district policy that forbade school police from removing children from classrooms for private, unsupervised encounters. The district court dismissed the claims against the principal and aide, and the student appealed.

The court of appeals held that the student’s allegations were insufficient to support claims for Section 1983 supervisory liability against the detention aide and principal for violation of student’s due process right to bodily integrity, because the student failed to plead facts that supported his claim that the principal and teacher knew, or should have known, about the encounters, and failed to allege that the principal and aide had any supervisory or actual authority over the officer. The court of appeals further held that the student’s allegations were insufficient to support his Section 1983 claim for failure to train against the school principal, because his claim was a rote recitation of a cause of action coupled with a legal conclusion, and contained no facts on which the court could rely. – Bonnie Hoffman

S.K. v. North Allegheny Sch. Dist., 168 F. Supp. 3d 786 (W.D. Pa. 2016). S.K. was a ninth-grade student who entered North Allegheny Intermediate School in 2009. The campus housed only ninth- and tenth-graders. An initiation and haz-ing practice was in place, primarily with tenth-graders as the perpetrators. S.K. received a threatening text message and Facebook posting the evening before school began, respond-ing in a manner that elicited further profane and threatening language from the sender. The next day at school, she reported the incident to the principal, and he called her to his office using the loudspeaker system. S.K. later contended that his method of calling her had the effect of identifying her as a complain-ant. Throughout the year, harassment escalated, including a variety of verbal and physical confrontations. S.K. contended that faculty members witnessed the harassment but did not intervene. Her parents joined her in asking for intervention, but they saw no punishment or consequences for the students involved. The harassment was so pervasive that S.K. tried to take her own life.

At that point, her parents took their concerns to the school board. They met with the superintendent, who assured them that the situation would be remedied. The principal and guid-ance counselor convinced S.K. to transfer to another school, for which they paid tuition and provided her with a new laptop. After completing ninth grade at another school, she returned to North Allegheny for tenth grade, but the harass-ment and bullying began again, this time perpetrated by her grade-level peers. S.K. returned to the transfer school and filed her suit. She contended that she was the victim of student-to-student sexual harassment that constituted violation of Title IX. Further, she contended retaliation for having reported the harassment; retaliation for exercise of First Amendment


All rights reserved

protected expression; as well as violation of equal protection under the Fourteenth Amendment, because the district prac-ticed “selective enforcement” and sexual discrimination. The court agreed that S.K. had been a victim of sexual harassment, which constituted violation of Title IX. However, all her other complaints were dismissed, with the reasoning that the school had made efforts to control the harassing behavior, and thus had not exhibited “deliberate indifference” to her plight. S.K. built part of her case on the failure of the district to enact new and more stringent anti-harassment policies and rules. The court found that the failure to act in a manner desired by the plaintiff is insufficient basis for retaliation and constitutional claims. – Barbara Qualls

Briggs v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d 320 (N.D.N.Y. 2016). D.B. was a high school student who committed suicide, presumably because of severe and relent-less harassment at school. After his death, his estate sued the district, board, superintendent, principal, and board president. A wide array of claims included violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Dis-abilities Act, the Fourteenth Amendment, the Individuals with Disabilities Education Act, the New York State Education Law, and the New York Dignity for All Students Act. The narrative of the judge’s analysis held little detail about the nature of D.B.’s disability or the type of harassment that he endured. His suicide happened at home. The suit was brought by Amy Briggs, as plaintiff administrator of D.B.’s estate. The conten-tion was that D.B. was harassed and the school and its officials failed to provide appropriate supervision, resulting in negligent infliction of emotional distress. Plaintiff Briggs was granted opportunity to amend her original complaint to include Title IX violation. All other aspects of the claim also survived the motion to dismiss and were referred back to the lower court. The important legal issue in this case was the machination of the district court judge in recognition of the Title IX claim. He found that the Second Circuit had established precedent that rejected sexual orientation discrimination as an actionable cause under federal statutes. However, the Title IX claim survived in this case, due to the fact that the homophobic slurs occurred because of the perception of his sexual orientation, but the plaintiff’s claim did not say that he was, in fact, homosexual. – Barbara Qualls

K.S. v. Detroit Pub. Sch., 130 F. Supp. 3d. 1073 (E.D. Mich. 2015). Summary judgment was denied to Detroit Public Schools (DPS) and individual school employees and administrators, as well as a volunteer teacher who admitted he made sexual advances toward a male student (K.S.) at the Frederick Douglass Academy. The volunteer teacher, a former Detroit City Council member and president, conducted weekly meetings of a leadership forum (named after the volunteer teacher). The program operated during the 2012-2013 school year. While acting as a volunteer teacher, the plaintiff made sexual advances toward the plaintiff, eventually leading to repeated solicitations for the plaintiff to video record himself masturbating.

The amended complaint before the court was based on the Michigan Elliot-Larsen Civil Rights Act, Title IX of the Education Amendment of 1972, and Michigan common law. The defendant argued there were no civil rights violations because the plaintiff was not a member of a protected group, the conduct was not “unwelcome,” and the teacher could not have interfered with the plaintiff’s education because his advances all occurred after the last day of classes. The defen-dant also argued that his conduct could not have provoked the outrage necessary to support a claim for intentional infliction of emotional distress. The DPS defendants contended they had no advance notice and could not have prevented the conduct.

During the school year, the plaintiff noticed the defendant giving him “seductive looks” and perceived him to be flirting with him. Other students noticed this behavior as well, and some spread rumors about the sexual orientation of the defendant. At the end of the school year, the defendant took the plaintiff shopping, against the wishes of the plaintiff’s mother. On that trip, the defendant touched the upper thigh of K.S., conduct that was not welcome, and offered him money. Later, the defendant sent explicit text messages that eventually led to asking K.S. to make a video of himself masturbating, in exchange for money. The defendant did not deny sending the messages and admitted suggesting that if the plaintiff “made sex tapes,” he would pay him money. As a result of the conduct, the plaintiff said he lost friends, had problems focusing in school, and had difficulties with his family. His mother contacted the school administration about gifts and clothing, and later contacted law enforcement.

The court determined that the defendant’s conduct fell short of “conscience-shocking,” related to the single incident of touching K.S.’s thigh, and granted summary judgment on that claim. However, under the Elliot-Larsen Act, a jury could reasonably conclude K.S. was subjected to sexual harassment. The court stressed the behavior could not be excused merely because the plaintiff eventually was able to graduate from the Academy. The defendant’s “overt and predatory harassment” over the course of the year could be determined to cause the plaintiff severe emotional distress.

Summary judgment was denied to DPS because testimony showed that school board members were aware of the reputa-tion of the defendant; concerns were raised that the defendant had a history and reputation for inappropriate relationships with young males, yet no steps were taken to prevent the al-legations. Sufficient evidence also created a question of fact related to the Title IX claims because the record showed that despite having knowledge of the reputation of the defendant, no one took any action to prevent his contact with students. Additionally, contrary to school district policy, no background check was conducted, and no effort was made to supervise the forum meetings. – Robert F. Hachiya

Harrington v. City of Attleboro, 172 F. Supp. 3d 337 (D. Mass. 2016). Noelle, a student who endured four years of peer-on-peer harassment, and her mother, filed suit against the city of Attleboro and multiple school officials asserting violations of Title IX, 42 U.S.C. § 1983, and negligence. In middle school, Noelle was subjected to verbal abuse from



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several boys, including being called a “bitch, slut, whore, and fat ass.” This behavior continued despite multiple complaints from Noelle and her mother. Noelle also was physically as-saulted by the main instigator, Thomas C., suffering a sprained ankle and fractured wrist.

Curiously, “as a matter of policy,” the records of the ha-rassment and abuse that took place during middle school were not transferred to the high school, and Noelle and Thomas C. ended up in the same classroom. Not surprisingly, the conduct continued. One of the assistant principals did verbally reprimand Thomas, but the harassment intensified, with new perpetrators getting involved. Eventually, Noelle suffered severe depression and anxiety and was withdrawn from school and enrolled in a crisis intervention counseling center. The court concluded that the complaint pleaded facts sufficient to state a plausible Title IX claim, noting that Noelle was subjected to severe, pervasive, and objectively offensive peer-on-peer harassment that deprived her of educational opportunities; additionally, the defendants were deliberately indifferent in that their limited response was completely unreasonable, given the known circumstances.

The Section 1983 equal protection claim was dismissed because Noelle was unable to show that she was subjected to discriminatory treatment on the basis of her membership in a protected class. The state law claims for negligence were dismissed, because she failed to comply with presentment requirements; the methods employed by school officials when investigating allegations of school bullying were seen as discretionary functions, placing her claim outside the scope of permissible negligence suits under the Massachusetts Tort Claims Act. The court determined that neither the public employer nor its agents were the original cause of the injuries sustained by Noelle. The court also dismissed a claim under the Massachusetts Equal Rights Act because the plaintiff was unable to identify an underlying contractual relationship with the Attleboro School District. – Joe Dryden

Lockhart v. Willingboro High Sch., 170 F. Supp. 3d 722 (D. N.J. 2015). A high school student receiving special education services claimed to have been sexually assaulted by another student after a substitute teacher allowed the two of them to return to a classroom, unsupervised, to retrieve personal effects. Her legal guardians filed suit alleging violations of Title IX, 42 U.S.C. §1983 (First Amendment, Fourteenth Amendment Due Process, failure to train), negligence, and intentional infliction of emotional distress. Defendants moved to dismiss for failure to state a claim, which was granted in part and denied in part.

Two years prior to the sexual assault at issue, the plaintiff brought forth allegations of another sexual assault, which was investigated and determined to be a consensual act. The court, however, took notice of a psychological evaluation completed two months before the second alleged sexual assault, where the plaintiff reported numerous episodes of unwanted sexual touching from her peers, and concluded that there was a great likelihood for continued sexual abuse. In the view of the court, this report, coupled with campus levels of violence and van-dalism, put defendants on notice that there was a heightened risk for sexual assaults and that they failed to take effective

security measures, precluding the dismissal of the negligence claim. In addition, the court felt the allegations were sufficient to state a plausible claim for deliberate indifference toward student-on-student sexual harassment against the Willingboro Board of Education.

While the court recognized the negligence of the defen-dants regarding the need for supervision, negligence did not rise to the level of a constitutional violation under Section 1983 and, as such, the due process and the failure to train claims were dismissed. The evidence did not show the existence of a special relationship, such as that seen in prisons, nor any type of state-created danger. The First Amendment claim also was summarily dismissed. Finally, the intentional infliction of emotional distress claim was dismissed, as the actions of school officials did not rise to the level of being outrageous. – Joe Dryden

Students with Disabilities

B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152 (2d Cir. 2016). Students J.C. and T.H. were identified as students with disabilities under the IDEA. Each passed all her courses dur-ing the ninth-grade year but, because both had been assigned to non-credit-bearing Academic Intervention Services (AIS) courses in math and English, neither earned sufficient credits to advance to tenth grade at the start of the next school year. Both girls graduated at the end of their fourth high school year. At the end of their third high school year, their mothers jointly commenced a Section 1983 lawsuit against the school district, without exhausting the administrative remedy available under the IDEA. Their cause of action, based on the ADA and Sec-tion 504, asserted that scheduling AIS courses during school hours had a disparate impact on students with disabilities; as proof, they relied on a statistical showing that students identified as disabled under the IDEA were offered AIS at a greater rate than were students not so identified. The district court concluded that the plaintiffs were not required to exhaust IDEA remedies, because their ADA/504 claim challenged a district-wide policy of discrimination, but further concluded that they had not shown the district’s policy to have a disparate impact on students with a disability as defined under those two statutes. The circuit court noted that the question of whether an individual with a disability for IDEA purposes qualifies as a matter of law as an individual with a disability for ADA and Section 504 purposes was one of first impression in the second circuit, and upheld the decision below. It concluded that the evidence offered—which included neither a particularized showing concerning whether the students included as disabled in the data met the ADA/504 definition for the term, nor any generalized evidence tending to support a finding that they would—failed to establish, as a matter of law, that the students identified as disabled under the IDEA were also disabled for ADA/504 purposes. – Kathryn McCary

Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55 (2d Cir. 2016). The plaintiff alleged that procedural errors in the development of the IEP denied her son, a child with autism, a


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free appropriate public education; however, the court concluded that they did not. The school district is required to give parents the opportunity to participate in decisions about the child’s education, but that does not mean that parents must be at all IEP team meetings. The parents in this case did participate in some meetings, and the school district made repeated attempts to schedule summer meetings around the parents’ travel plans. The school district’s rejection of the placement options proposed by the parents did not prevent the parents from participating, as the right to participate is not a right to veto.

The parents were entitled, however, to be paid the value of the stay-put placement, which was the home program the district had agreed to fund on a temporary basis before the parents sought administrative review. The obligation to fund a stay-put placement is statutory, not contractual. The relevant placement was the one the student was in at the time disagree-ment arose, even though the agreement specified it would be funded on a temporary basis, not the one later proposed by the IEP team that was never agreed to or implemented. The mat-ter was remanded to the district court for a calculation of the value of the home program from the time the district stopped funding it until the dispute between the parties was no longer pending. – Kathryn McCary

S.D. v. Haddon Heights Bd. of Educ., 833 F.3d 389 (3d Cir. 2016). Individually and on behalf of their son, parents filed suit against a school board alleging that the board failed to comply with its statutory obligations to provide their son, a student with a disability, with free and appropriate public education (FAPE). Additionally, they claimed the board enacted an attendance policy that deprived him of education equivalent to that provided to his nondisabled peers, in violation of the Rehabilitation Act; Title II of Americans with Disabilities Act (ADA); First and Fourteenth Amendments pursuant to Section 1983; and New Jersey’s Law Against Discrimination. The district court granted the school board’s motion to dismiss for lack of subject matter jurisdiction, because the parents failed to exhaust the administrative process provided for by the Individuals with Disabilities Education Act (“IDEA”). The parents appealed.

The appellate court addressed the narrow question of whether claims that a board of education discriminated against a student and/or the student’s parents based on his disability, and retaliated against them for enforcing their child’s rights under a non-IDEA statute, are subject to the IDEA exhaustion requirement. The court found that the parents’ discrimination and retaliation claims against the school board—brought pursu-ant to the ADA, Rehabilitation Act, and Section 1983—related to the identification, evaluation, or educational placement of a child, or to provision of FAPE to their child. In particular, the court found that the parents’ discrimination claims arose from alleged educational harm to their disabled son, because the theory behind the parents’ discrimination claims was that school board failed to provide instruction tailored to meet their son’s special needs resulting from his disability, which was included in the definition of FAPE. As for the parents’

retaliation claims, they arose from adverse actions, including the enactment of a revised attendance policy that the school board allegedly took in response to the parents’ efforts to obtain FAPE for their son. Thus, because the alleged claims and inju-ries were educational in nature and implicated services within the purview of the IDEA, the court found that the parents’ claims were subject to the IDEA’s administrative exhaustion requirement, and affirmed the district court’s dismissal of their claims. – Bonnie Hoffman

W.R. v. State, 651 Fed. App’x 514 (6th Cir.2016). Parents of a child with autism, W.R., brought a Section 1983 action against the Ohio Department of Health (ODH). They claimed that the child was denied applied behavior analysis therapy—in violation of the Individuals with Disabilities in Education Act (IDEA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act—for violating the minor’s due process and equal protection rights. The U.S. District Court for the Northern District of Ohio dismissed the action because the parents failed to exhaust administrative remedies, and the parents appealed.

In Ohio, the ODH is the state agency responsible for implementing the state’s IDEA Part C Program known as “Help Me Grow.” W.R.’s autism assessment recommended, in part, that he have 25-40 hours weekly of applied behavior analysis therapy. When Help Me Grow advised the parents that it did not provide such therapy, they acquired the services at their own expense. Pending the present action, a similar case in another district resulted in the court ordering Ohio to provide applied behavior analysis services, after which state laws were amended to incorporate IDEA’s Part B exhaustion requirement into Ohio’s IDEA Part C. Subsequently, Help Me Grow provided such services to W.R.

The appellate court affirmed and held that the parents were required to exhaust their administrative remedies prior to bringing suit against ODH under IDEA. Furthermore, IDEA disallows general damages, and the plaintiffs cannot escape the exhaustion requirements by requesting them. – Betty Cox

Smith v. Cheynne Mtn. Sch. Dist. 12, 652 Fed. App’x 697 (10th Cir. 2016). This case involved a student enrolled in kinder-garten in a charter school in her district. A prior individualized education program (IEP) was determined to be inadequate, and a new IEP was developed. Prior to the start of the following academic year, the charter school informed the parents that the student would not be readmitted, as it did not have adequate staff to carry out the IEP. The parents brought a due process complaint. The administrative law judge denied the parents’ request to enroll the student in the charter school because there had been an insufficient showing that the home district could not implement the IEP. One parent then filed a federal action and sought, under the stay-put provision, a temporary injunction stating the district must pay for undisclosed private schooling for the student. Alternatively, a determination that the charter school was the current placement to be maintained pending the litigation was sought. The district court denied the request for private schooling and determined the charter school was the current placement to be maintained. The parent appealed the



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denial of private school tuition to the Tenth Circuit Court of Appeals. This court found, under a fact-driven approach, that the IEP in place when the stay-put provision was invoked was dispositive, and that transfer to a new school without showing the school could implement the IEP would not comply with the stay-put provision. The district court’s preliminary injunction was affirmed. – Traci Ballard

B.D. v. Dist. of Columbia, 817 F.3d 792 (D.C. Cir. 2016). A student who received special education services from the District of Columbia Public Schools (“DCPS”), B.D., made no meaningful educational progress even though revisions were made to his individualized education plan (“IEP”). While attempts were made to rectify the IEP, the Davises, B.D.’s parents, filed an administrative complaint. The hearing officer found that DCPS had denied B.D. a free appropriate public education (“FAPE”) and awarded him five hours per week of “intensive occupational therapy” for three months as compensatory education. The hearing officer also ordered DCPS to reimburse the Davises for their costs when they pro-vided in-home services for their son. The parents believed the compensatory education ordered was not sufficient and filed a district court complaint that included four counts: (1) appealing unfavorable portions of the hearing officer’s decision and the refusal to provide more compensatory education; (2) asking the court to enforce favorable sections of the decision which the DCPS had not complied with; (3) asking for an injunction to find an appropriate educational placement and to develop appropriate educational programs for B.D. without delay; and (4) requesting legal fees and expenses as the partially prevail-ing parties at the administrative level. After the parties filed cross-motions for summary judgment, the district court granted the parents’ fourth count, but ruled in favor of DCPS on the other three counts. The Davises appealed; the appellate court affirmed in part and reversed in part, sending the case back for further proceedings consistent with the decision.

Regarding count one, the court held that the hearing of-ficer failed to award sufficient compensatory education and reversed the lower court’s ruling. The court reasoned that the record showed that B.D.’s FAPE denial affected his educational progress, and the hearing officer failed to address how to put B.D. in the educational position he would be in without the FAPE denial. Regarding count two, the court affirmed the lower court’s ruling. The Davises argued that a provision of the Individuals with Disabilities Education Act (“IDEA”) allowed them to bring a civil action if they were “aggrieved by the findings and decision” of a hearing officer. The court concluded that “[o]ne who wins before a hearing officer is not ‘aggrieved’ by the hearing officer’s decision,” and reasoned that the plain text does not provide a basis to make a claim for parents who sought to enforce the hearing officer’s favorable decision. However, the court suggested there may be alternative methods of enforcement. Regarding count three, the court held that the issue was moot because DCPS had already updated the IEP, recommended that B.D. be educated in a therapeutic residential facility, and located an appropriate facility that ac-

cepted B.D. The court, therefore, affirmed the lower court’s decision on the third count. – Lauren Holler

E.H. v. New York City Dep’t of Educ., 164 F. Supp. 3d 539 (S.D.N.Y. 2016). An 11-year-old with autism had attended a private school specializing in neurodevelopmental delays for seven years, since 2009-2010. Each year the parent had sought tuition reimbursement from the public schools under the Individuals with Disabilities Education Act (IDEA). This case involved the reimbursement claim for 2012-2013. (The tuition for 2009-2010, 2013-2014 and 2014-2015-2016 was settled by agreement; for 2010-2011 was awarded by an im-partial hearing officer (IHO) and not appealed; and for 2011-2012 and 2015-2016 was in ongoing proceedings when this decision was issued.)

The public schools convened an individualized education program (IEP) team meeting including the parent on June 21, 2012, and developed a proposed 2012-2013 IEP using the private school’s most recent records and progress reports. On June 28, the schools issued a final notice proposing a specific public school placement, to begin on July 2. On June 29, the parent signed a new contract with the private school. On July 9, the parent requested an IDEA due process hearing, alleging that the schools’ proposal was procedurally and substantively inadequate, and therefore, another year of tuition reimburse-ment was appropriate.

The IHO agreed that the IEP was both procedurally and substantively inadequate, that the private school’s program was appropriate to meet the student’s needs, and awarded tuition reimbursement for 2012-2013. The schools appealed. The state review officer (SRO) overruled the IHO, held that the IEP was procedurally and substantively appropriate to provide a free appropriate public education (FAPE), and denied reimbursement. The parent appealed to federal court, and the parties filed cross-motions for summary judgment. The court found the SRO’s decision unpersuasive, agreed with the IHO on all points, and awarded reimbursement for 2012-2013. – Chuck Noland

M.T. v. New York City Dep’t of Educ., 165 F. Supp. 3d 106 (S.D.N.Y. 2016). The plaintiffs’ son was largely nonverbal, legally blind, walked with a stiff gait, had poor balance, and was classified under the Individuals with Disabilities Educa-tion Act (IDEA) as having multiple disabilities. He received public early intervention and kindergarten services and, at age six, his parents enrolled him in a specialized private school. In May 2011, the public schools conducted an annual review and developed a proposed individualized education program (IEP) for a 2011-2012 public school placement. The IEP meeting included one of the student’s parents and, by phone, several representatives from the private school. The proposed IEP included a range of special education and related services to meet thirty-one annual goals in a twelve-month class with a 12:1:4 ratio, including one trained paraprofessional who would be assigned to the student full time.


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The parents visited the class and rejected the proposed IEP because the class was too large to provide the individual attention the student needed. They reenrolled him in the private school for 2011-2012 and filed an IDEA due process complaint, alleging that the proposed public placement did not meet the IDEA standards and requesting reimbursement for the private 2011-2012 services. An impartial hearing officer (IHO) held that the student needed, and the IDEA required, more attention than the IEP called for; found the private placement appropriate; and awarded about 20% of the requested reimbursement. On appeal, a state review officer (SRO) found that the proposed IEP met all applicable IDEA standards and denied reimbursement. The parents appealed to federal court. The court agreed with the SRO, noted that the IDEA “sets a modest goal, one that undoubtedly falls short of what devoted parents would hope to provide for a child working to overcome the substantial challenges of his disabilities,” and denied reimbursement. 165 F. Supp. 3d at 121. – Chuck Noland

Jason O. v. Manhattan Sch. Dist., 173 F. Supp. 3d 744 (E.D. Ill. 2016). The parents of Jacob, a student receiving special education and related services under IDEA, filed a due process complaint asserting both procedural and substantive violations of the Act. The hearing officer sided with the school district on every issue except that of compensation. The district court then upheld the hearing officer’s decision, but granted the plaintiffs’ request for additional compensation. On the procedural issues, the court first held that the district provided an adequate assessment of Jacob because it tested him for all areas of suspected disability. The court also held that the district did not fail to inform the plaintiffs of the availability of the district’s Early Childhood Program because the program was for students with behavioral issues, and the plaintiffs did not provide evidence to the district showing Jacob had behavioral issues at that time. The district also did not predetermine Jacob’s placement because it acted in good faith and adjusted Jacob’s IEP per the views of the plaintiffs and their expert consultants. In addition, the court held that modifying Jacob’s recess and removing him from certain activities complied with his behavior modification plan and did not violate the stay-put requirement. Finally, any procedural violations committed by the hearing officer did not result in the loss of educational opportunity for Jacob and, thus, did not violate IDEA.

Turning to the substantive issues, the court first held that the district’s proposed change of placement did not amount to a violation of FAPE, since Jacob was not making academic progress in his current placement and his behavioral problems warranted placement in a more supportive program. Likewise, the proposed placement did not violate the least restrictive environment provision because “Jacob was not receiving a satisfactory education within the regular classroom setting” and the district “knew of no further adjustments that could have been made in the regular classroom setting to keep Jacob there, and plaintiffs have not identified any such adjustments on review.” 173 F. Supp. 3d at 771-772. Finally, the court

awarded the plaintiffs their pre-insurance, not post-insurance, evaluation costs. – Phillip Buckley

Platt v. Dist. of Columbia, 168 F. Supp. 3d 253 (D.D.C. 2016). A parent of a child with a disability challenged a mag-istrate judge’s report recommending that she be awarded over $46,000 in fees and costs related to an IDEA administrative due process in which she alleged that the District of Columbia Public Schools failed to provide her child a FAPE. The district court first noted that the magistrate judge had applied the cor-rect legal standard in reviewing the plaintiff’s motion for sum-mary judgment on the issue of awarding the plaintiff attorney fees under IDEA. Under that standard, “the party moving for summary judgment bears the burden of demonstrating the rea-sonableness of the fees requested, both in terms of hours spent and hourly rate.” 168 F. Supp. 3d at 261. Applying that same standard, the court first adopted the magistrate’s recommenda-tion that the plaintiff be denied fees for the 24.8 hours spent on unsuccessfully litigating issues related to a purported 2009 IEP for her child. Because these hours were spent on unsuccessful claims that were unrelated to the claims on which the plaintiff did prevail (i.e., because they did not involve a common set of facts and were not based on related legal theories), the hours could not be covered. Second, the court upheld a 15% fee reduction regarding the district’s denial of FAPE in 2011-2013. Here, the reduction was appropriate because the plaintiff was only successful on some of her claims, and fee awards under IDEA are to be proportionate to the degree of success achieved by the plaintiff. Finally, the court also adopted the magistrate’s recommendation regarding the rate at which the plaintiff’s counsel could be compensated. Since the plaintiff failed to carry her burden to establish the prevailing market rate, it falls to the court to determine a reasonable rate. The rate recommended by the magistrate was appropriate because this case involved routine IDEA issues. – Phillip Buckley

S.B. v. New York City Dep’t of Educ., 174 F. Supp. 3d 798 (S.D.N.Y. 2016). Plaintiff parents brought action under IDEA seeking reimbursement from the New York City Depart-ment of Education (“DOE”) for private school tuition costs for their child with autism (“S.B”). The impartial hearing of-ficer (“IHO”) held that the DOE had denied S.B. a FAPE and awarded tuition reimbursement to the parents. This holding was overturned by the state review officer (“SRO”). In reviewing the decisions reached by the IHO and SRO, the district court awarded reimbursement to the parents, finding that although the DOE complied with IDEA’s procedural requirements, it failed to provide S.B. with a FAPE. Specifically, the DOE (and the SRO) ignored overwhelming evidence that S.B. required a 1:1 placement, offering instead to place him in a 6:1:1 placement. Because this amounted to a denial of FAPE, the parents’ unilat-eral placement in a private placement was justified. Since that unilateral placement was adequate to serve S.B.’s educational needs, the court upheld the IHO’s decision to award tuition reimbursement to S.B.’s parents. – Phillip Buckley



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L.S. v. Lansing Sch. Dist. #158, 169 F. Supp. 3d 761 (N.D. Ill. 2015). Julia V., the parent of sixth-grade student L.S., disagreed with the individualized education plan (IEP) team’s determination to place L.S. into an alternative therapeutic school in October 2013. Invoking her right to a due process hearing, Julia requested the “stay-put” placement for L.S. to remain at the junior high school during the proceedings. Following the decision of the independent hearing officer (IHO) in July 2014 favoring the district’s decision to move L.S. to the alternative school, the district attempted to arrange bus transportation for L.S.’s new placement. Julia had previously registered L.S. to attend the junior high before the IHO’s decision; she informed the district she was considering an appeal within the 120 days available for her to do so. She sent a letter in September 2014 stating L.S. would not attend the alternative school, and the district reiterated its position that it was the best placement. L.S. remained at home, where Julia stated he was receiving instruction and socio-emotional behavioral therapy. Julia filed an appeal on December 17, 2014, and contacted the district to arrange for a stay-put placement at the junior high school. The district countered that L.S. had been withdrawn, thus the junior high was not the appropriate placement. Citing a difference of fact regarding whether Julia officially withdrew L.S., or simply was not given the option to send him to the junior high, the court granted Julia’s motion for a temporary restraining order and preliminary injunction to order the district to allow L.S. to return to the junior high school as the stay-put placement in the previous school year. – Catherine Robert

Briggs v. Dist. of Columbia, 172 F. Supp. 3d 15 (D.D.C. 2016). After succeeding in an administrative proceeding under IDEA and being awarded attorney fees at three-quarters her attorney’s Laffey rate, the plaintiff brought an action to recover fees and costs emanating from the fee-collection litigation. At the discretion of the court, the prevailing party can recover at-torney fees that include those for reasonable time devoted to fee collection. However, when the prevailing party achieves only partial success, a reduction may be warranted. Based upon the initial partial award, the straightforward nature of fee-on-fee litigation, and case precedent, the D.C District Court awarded fees associated with fee collection at one-half of her attorney’s applicable Laffey rate. The requested rate of $520 per hour was reduced by one-half for fee-on-fee litigation, then reduced by an additional one-quarter since she was only awarded three-quarters the Laffey rate for the initial litigation, bringing the rate to $195 per hour. The plaintiff was awarded an additional $5,524.09 for fees associated with fee collection. – Joe Dryden

Flood v. Dist. of Columbia, 172 F. Supp. 3d 197 (D.D.C. 2016). Having succeeded in an administrative due process hearing under IDEA, the mother of an elementary school student with emotional and behavioral disabilities sought re-imbursement for attorney fees and court costs. Her claim was referred to a magistrate judge, who awarded three-quarters of the hourly rate requested. The plaintiff filed a timely objection and the parties filed cross-motions for summary judgment. The defendants claimed that the underlying administrative hearing

was not complex litigation and, therefore, full fee recovery was unjustified. The D.C. District Court noted evidence of other recent fee awards in IDEA cases, as well as evidence of the rates charged by similarly situated IDEA attorneys, and held that the requested rates were aligned with prevailing market rates for similar legal services from an attorney with similar levels of experience. The court felt that the particular complexity of the case was not germane when assessing rea-sonable reimbursement rates. The complexity of a case, or a lack thereof, is reflected in the number of hours expended. The court overturned the award from the magistrate and awarded attorney fees at the full Laffey rate. – Joe Dryden

Moradnejad v. Dist. of Columbia, 177 F.Supp.3d 260 (D.D.C. 2016). P.X. was an elementary school student in the District of Columbia Public Schools (DCPS) who had pervasive developmental disorder that fell within the autism spectrum. He was three years old when he was enrolled at the Walker Jones Education Campus and was placed in a small, self-contained classroom for autistic children. Continuing at Walker Jones Education Campus, he received several individualized education plans (IEPs) as he moved into prekindergarten and kindergarten. P.X. was placed in general education for more time and was required to repeat prekindergarten, with reduced special education services. During the IEP meeting planning for kindergarten, his mother, Ms. Moradnejad, was concerned about the level of P.X’s performance going into kindergarten. At the end of the student’s kindergarten year, Ms. Moranejad was worried about whether he was being sufficiently prepared for the first grade and maintained concerns with his failure to master IEP goals from the previous year. Those goals and sug-gestions were included in the IEP. P.X. continued to improve in a number of areas, and while Ms. Moranejad expressed concerns at the meeting about doing what was best for P.X., she never stated that the IEP provided an inappropriate setting for him.

School administrators, in conjunction with the mother, believed P.X. would benefit from special instruction in the gen-eral classroom. At a subsequent IEP meeting, Ms. Moradnejad requested that P.X. be placed in self-contained, autism-focused classroom at Hearst Elementary School for the upcoming school year. The school amended P.X’s placement by placing him at Hearst and increased the amount of specialized instruction out-side of the general education classroom. Ms. Moradnejad filed an administrative due process complaint alleging that DCPS denied P.X. a free appropriate public education (FAPE). The hearing officer found that she failed to meet her burden to prove that DCPS denied her son a FAPE, and that there was nothing inappropriate about the IEPs. In addition, the hearing officer concluded that the IEPs were developed and implemented with the full cooperation and consent of the mother.

Ms. Moradnejad appealed. The IEPs, she asserts, were inappropriate because they failed to provide P.X. with edu-cation in a self-contained setting, out of general education, which he required to receive educational benefit. The mother further argued that the administrative decision was based on the erroneous findings that her son derived educational benefit from the inclusive setting, and that she was in agreement with


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the IEPs. Ms. Moradnejad moved for summary judgment; however, the court denied her motion for summary judgment and granted the summary judgment for DCPS. – Brett Geier

D.M. v. Seattle Sch. Dist., 170 F. Supp. 3d 1328 (W.D. Wash. 2016). A fifth-grade student, M.M., had attended the Seattle School District through first grade. Believing that M.M. had not received a free and appropriate public educa-tion (FAPE), his parents moved him to a private school (APL) for the 2011-2012 school year and M.M. repeated first grade. The Seattle School District never placed M.M. at APL, yet he continued to be enrolled there. However, during his time at APL, a series of individualized education programs (IEPs) were developed, proposing to place him in public school settings.

In October 2014, Seattle School District completed an IEP for M.M. for the 2014-2015 school year proposing that he transition from APL to Thornton Creek Elementary School in January 2015. The parents requested an administrative hearing under the IDEA, challenging the district’s evaluations, IEPs, placement at Thornton Creek Elementary, and the failure to provide him with speech and occupational therapy (OT). The administrative law judge (ALJ) held that the Seattle School District offered inappropriate occupational therapy services and needed to reimburse for those expenses. In addition, the ALJ determined that the IEP for the 2015-2016 school year needed to account for OT services. The ALJ did not award reimbursement for private school tuition.

Seattle School District proposed an IEP just before the start of the 2015-2016 school year, which placed M.M. at Sacajawea Elementary School. The parents filed action requesting the same relief sought at the administrative hearing, relief for the 2015-2016 school year to the present, including an appropriate IEP and tuition expenses at APL, and an order requiring the district to prospectively place M.M. at APL at district expense.

The parents sought leave to supplement the record with evidence of events occurring since the administrative hearing. The district opposed the proposed supplementation of the re-cord as impermissible and insufficiently specific. The district sought dismissal of any post-hearing claims not adjudicated in the underlying administrative action. The district further argued that IDEA does not authorize parents to advance such claims without exhausting administrative remedies. The district sought to limit the substantive legal issues in the appeal to those adjudicated in the administrative action. The court held for the parents and directed the parties to promptly meet and confer to determine a date by which any and all additional evidence was to be submitted. – Brett Geier

J.M. v. New York City Dept. of Educ., 171 F. Supp. 3d 326 (S.D.N.Y. 2016). L.M., a 14-year-old student at the Rebecca School with the New York City Department of Education (DOE), was classified as a student with autism at the beginning of the 2011-2012 school year. A previous complaint was heard by the same court and the DOE’s motion for summary judgment was granted, which remanded the case to the independent

hearing officer (IHO) for consideration of claims raised in the plaintiff’s due process complaint that the IHO did not address.

The IHO concluded that the DOE had not provided FAPE for L.M. and ordered tuition reimbursement. The DOE appealed to the New York Office of State Review again, and that body overturned the IHO and found the school did provide FAPE. Both parties moved for summary judgment. The district court found that the IEP provided L.M. with FAPE, placed L.M. in an appropriate location, and held that the parents’ challenges of prospective placement were impermissible, speculative, substantive attacks on the adequacy of the IEP. – Brett Geier

Gohl v. Livonia Pub. Schs, 134 F. Supp. 3d 1066 (E.D. Mich. 2015). The mother of a three-year-old student with a disability filed suit against the school district and certain school district officials for a teacher’s abuse of the student, which included jerking his head back and yelling in his face. The complaint pleaded claims for constitutional violations under 42 U.S.C. § 1983; for federal statutory violations under Sec-tion 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act; and for state tort claims.

The district court dismissed the federal statutory claims against the individual employees because the school district was also named as a defendant in the case and the same claims against the individuals in their official capacities would be re-dundant. The court then dismissed the statutory claims against the school district because the plaintiff failed to present evidence to show that the student was denied any particular benefit of an educational program, or that the student was treated differently than nondisabled students. It also dismissed all constitutional claims because the teacher’s conduct, if proven, did not rise to the level of conscious-shocking behavior necessary for a constitutional violation; the plaintiff failed to present medical evidence that the student suffered from a physical injury; and failed to present evidence that the student was intentionally treated differently than nondisabled students. After determining the federal claims lacked merit, the court declined to exercise supplemental jurisdiction over the state tort claims and allowed those claims to proceed to trial. – Joseph Nelson

School Boards

Financial Affairs

Doe v. Spartanburg Cnty. Sch. Dist. Three, 314 F.R.D. 174 (D.S.C. 2016). First accepting the school district’s offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure, the plaintiff subsequently filed a motion to alter or amend, or in the alternative, reconsider judgment, pursuant to Rules 59(e) or 60(b)(1). First, the plaintiff argued that the offer of judgment was ambiguous, and therefore should be construed against the offeror. In rejecting this argument, the court reasoned that the offer unambiguously provided that judgment would be entered against the school district only, and not the other defendants; thus, no error of law was committed. Second, the plaintiff argued that the offer of judgment was invalid because it was a conditional offer that was contingent upon the dismissal



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of all claims against the other non-offering defendants. The court reasoned that Rule 68 allows the defending party the discretion to allow judgment on specified terms and, therefore, the court ruled that the condition was valid. Even though the offer of judgment does not expressly reference attorney fees, the offer included a definite amount of judgment as well as a general release of the other defendants from all liabilities, thus contemplating attorney fees. Moreover, the court opined that even if attorney fees were not excluded by the general release, the plaintiff would still be unable to seek such fees against the school district. The district’s offer of judgment did not cause the plaintiff to become the prevailing party on the remaining Section 1983 claims against other individual defendants, as required for the plaintiff to be entitled to attorney fees under the relevant statute, since the offer of judgment expressly was against the school district only, and the school district did not have a Section 1983 claim pending against it. – Lauren Holler

Unger v. Rosenblum, 369 P.3d 1129 (Or. 2016). The peti-tioners sought review of the state Attorney General’s certified ballot title for a measure that would have established a high school graduation and college and career readiness fund. In relevant part, the measure would have required the legislature “‘to appropriate, allocate, and otherwise make available’ to the fund not less than $800 per student per year.” 369 P.3d at 1130. The court held that the Attorney General improperly speculated in the caption the possible effects of the proposed measure by stating that the measure “reduces funds for other services.” Id. Because the measure required that a specified amount of money be set aside for the fund per student per year, nothing in the measure itself necessarily requires that funds be reduced for other services. Therefore, the ballot title was referred to Attorney General for modification of caption. – Lauren Holler

Open Meeting Law

News 12 Co. v. Hempstead Pub. Sch. Bd. of Educ., 31 N.Y.S.3d 788 (N.Y. Sup. Ct. 2016). Hempstead Public Schools was placed on receivership by the New York State Education Department and labeled as “persistently struggling.” The court held that the superintendent receiver violated education law by banning reporters from a community forum that was convened to discuss school transformation plans under the receivership. The court reasoned that the forum constituted a “public meet-ing” because even though the general public may not situate themselves therein while the property is being used for school activities, the superintendent receiver opened the school for a convocation of the general public to discuss a matter of public interest since the school district was required to hold a public meeting to discuss school performance and construction of receivership, and the superintendent receiver had authority to convene the meeting without the board’s consent. Thus, the superintendent receiver unlawfully banned news reporters from attending the forum with their cameras as members of general public. Additionally, the court noted that a general distaste for media coverage is an insufficient reason to prohibit all media equipment such as cameras and camcorders. However, the

court also held that award of attorney fees was not warranted because the school board was not a repeat violator of open meetings law and that injunctive relief was not appropriate, but that the superintendent receiver must attend training sessions on open meetings law. – Lauren Holler

Tort Liability

Julian v. Bay Cnty. Dist. Sch. Bd., 189 So. 3d 310 (Fla. Dist. Ct. App. 2016). Julian, an employee of Bay County School District, brought whistleblower and negligent retention claims against the school board. The defendant moved for summary judgment, which was granted by the trial court; subsequently, an appeal was granted by a Florida court. The issue before the appellate court was whether the school board’s policy qualified as an ordinance under Florida’s Whistleblower Act. The court found that the term “ordinance” was not defined in either the statute, or in any case law interpreting the term in the same context as the statute. The appellate court affirmed the trial court’s decision in favor of the school board. Citing a 1993 advisory opinion by the Attorney General, which held that school boards are authorized to take legislative-type actions, the court held that school board’s policy qualified as an ordi-nance under the Florida Whistleblower’s Act. – Joseph Nelson

School Districts

Constitutional Rights

Freedom from Religion Found. Inc. v. New Kensington Sch. Dist., 832 F.3d 469 (3d Cir. 2016). Bringing a Section 1983 action against the school district were an organization dedicated to the separation of church and state, a student in a public school district, and the student’s parent, seeking a declaration that a Ten Commandments monument on the high school grounds violated the Establishment Clause and an injunction directing the district to remove the monument. The district court entered summary judgment in the district’s favor, concluding that the organization, the student, and the student’s parent lacked standing and that their request for injunctive relief was moot.

On appeal, the court held that the parent had constitutional standing to secure nominal damages for injury from past direct, unwelcome contact with the Ten Commandments monument, regardless of whether she fully read the monument’s text. She had viewed the monument on three occasions. The monument signaled to her that she was an outsider because she did not follow the particular religion that the monument endorsed. However, the court found that the student lacked constitu-tional standing to secure nominal damages. She had viewed the monument, after the lawsuit was filed, as conveying that the school wanted students to subscribe to particular religious beliefs; but she did not understand the monument when she encountered it prior to the lawsuit, because she was too young and never told anyone that it bothered her.


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In addition, the court found that the parent had standing to seek an injunction directing the district to remove the Ten Commandments monument, despite the fact that the parent ultimately decided not to send the student to the high school. At the time the complaint was filed, she believed that the stu-dent would attend the high school and come into daily contact with the monument, and she planned to drive the student to the school, which would result in her having direct contact with the monument. Finally, the court found that the parent’s decision to remove the student from the high school did not render her claim for injunctive relief moot. – Bonnie Hoffman

New York v. Utica City Sch. Dist., 177 F. Supp. 3d 739 (N.D. NY 2016). The Utica City School District employed a practice of denying enrollment in high school to immigrant students, age 17-20, if they demonstrated limited English pro-ficiency. Instead, they were directed to enroll in an alternative educational setting called the Newcomers Program, where no records were reported, thus allowing the school district to avoid English language proficiency testing and services. The Office of the Attorney General of New York filed a Section 1983 ac-tion alleging that this practice violated the Equal Protection and Due Process clauses, the Equal Educational Opportunities Act (EEOA), Title VI, and New York State law. The school district moved to dismiss. The U.S. District Court for the Northern District of New York held that the Office of the At-torney General (OAG) had the statutory authority to prosecute the action by demonstrating a “quasi-sovereign interest” that impacted a substantial portion of the population, and denied the motion to dismiss as to all counts. The OAG complaint was not duplicative of an underlying putative class-action civil case. – Joe Dryden

Desegregation

Davis v. Hot Springs Sch. Dist., 833 F.3d. 959, (8th Cir. 2016). School districts in Garland County, Arkansas, sought termination of the Garland County School Desegregation Case Comprehensive Settlement Agreement (the Agreement) when the transfer of school children was denied because they were black. The Agreement had been put in place by court order in 1992. The school districts argued the agreement was “no longer just or equitable” due to a change in state law. The district court held the change in state law did not warrant termination of the Agreement, and the Eighth Circuit affirmed. – Stewart Mayers

Mays v. Hamburg Sch. Dist., 834 F.3d 910 (8th Cir. 2016). In 1988, plaintiffs filed suit against the Hamburg, Arkansas School District, alleging their children’s rights under the Equal Protection Clause because of discrimination on the basis of race. Specifically, the lawsuit alleged that low numbers of African Americans on the school’s staff was the result of discriminatory hiring practices; the election of school board members on an at-large basis; the segregation of African American and white students resulting from standardized testing; a disproportionate assignment of African American students to special education; a disproportionate assignment of white students to gifted and

talented programs; student discipline imposed on a racially discriminatory basis; and a disproportionate number of African American children held back in the first grade. By 1991, the case was settled by consent order. During the intervening years, Hamburg School District had annexed nearby rural schools such as Fountain Hill and Wilmot. In 2014, the school district moved to reopen the case and requested permission to close the Wilmot campus and to modify the GT program. The plaintiffs opposed the move. The district court found that continuing to operate the Wilmot campus would be a financial hardship for the district and that placement of the former Wilmot students in the neighboring campuses in Portland and Noble/Albrit-ton would offer students the culturally diverse educational environment that was the goal of the original court order. The district court granted the district’s request to close the Wilmot campus, and the Eighth Circuit affirmed. – Stewart Mayers

Moore v. Tangipahoa Parish Sch. Bd., 836 F.3d. 503 (5th Cir. 2016). The Tangipahoa School District has been the subject of desegregation litigation since 1965. This case in-volved a district court’s order doubling the salary of the court compliance officer (CCO), an employee of the district. The position was created in 2014 and, in 2015, Donald Massey, the current CCO, asked for a raise. The district court doubled his salary and the school district appealed. The Fifth Circuit held that it did have jurisdiction to hear the appeal, and that the district court did not abuse its discretion in doubling Massey’s salary. – Stewart Mayers

Labor Relations

Calhoun Intermediate Sch. Dist. v. Calhoun Intermediate Educ. Ass’n, 885 N.W.2d 310 (Mich. Ct. App. 2016). A school district (plaintiff) filed a complaint alleging that the teachers’ union (defendant) had committed an unfair labor practice by insisting that the plaintiff include unenforceable language in the collective bargaining agreement (CBA) being negotiated between the two parties. The language the defendant insisted be included was in previous CBAs, but was now in violation of Michigan’s Public Employment Relations Act (PERA) by virtue of recent amendments. Specifically, the language per-tained to prohibited subjects of bargaining (i.e., teacher evalu-ation, teacher discipline, teacher layoff and recall procedures, and the procedure for filling vacancies) under PERA as newly amended. The parties agreed that these subjects could no longer be bargained, but the defendant insisted that they be included in an appendix in the new CBA so that those items could be resurrected if the law was changed. The Michigan Employ-ment Relations Commission (MERC) granted the plaintiff’s motion for summary disposition, and the defendant appealed. The defendant argued that it was not an unfair labor practice to insist that the language be included because there was no impasse. However, the Michigan Court of Appeals held that the defendant’s “insistence on maintaining prohibited language in the successor CBA was an act of bad faith,” and that the plaintiff “did not have to wait for an impasse before bringing



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its unfair labor practice claim.” 885 N.W.2d at 311. MERC’s decision was therefore affirmed. – Rick Geisel

Property and Contracts

McGee v. Balfour Beatty Constr., LLC, 247 Cal. App. 4th 235, 202 Cal. Rptr. 3d 251 (2016), reh’g denied (May 23, 2016). Taxpayers brought action against the school district and Balfour Beatty Construction for claims related to the al-legation that leases provided by the school district to Balfour were not “real leases,” but were a sham to avoid following the competitive bidding process. In addition, the taxpayers alleged a conflict of interest violation. In response, Balfour demurred to the complaint and requested that sanctions be filed against the taxpayers for making a frivolous argument.

The court of appeals held that the trial court properly sustained the demurrer as to all causes of action except the conflict of interest cause of action, and concluded that the trial court abused its discretion in awarding sanctions against the taxpayers for a frivolous argument. The court reasoned that the school district complied with the requirements of California law because under its plain language, the statute does not require the school to engage in a competitive bidding process, and the taxpayers failed to show that competitive bidding was required. In rejecting the defendants’ arguments that the taxpayers lacked standing and that independent contractors are not subject to the conflict of interest provisions, the court held that the taxpayers did plead a cause of action for conflict of interest and that the trial court should have overruled the defendants’ demurrers as to that cause of action. The court reasoned that since Balfour allegedly filled the roles and positions of officers, employees, and agents of the district by providing preconstruction services to the school through the lease-leaseback contract, the taxpayers established a violation of the conflict of interest provision in the statute barring public officials or employees from having personal financial interest in the contracts they form in their official capacities. – Lauren Holler

Sunshine Laws & FOIA

State ex rel. Strothers v. Keenon, 59 N.E.3d 556 (Ohio Ct. App. 2016). A realtor sought to review and inspect a number of documents held by an Ohio Board of Education (Board), including all staff personnel records. Additionally, the realtor sought records of discussions by the Board concerning the employment, dismissal, compensation, and investigation of charges against public employees. The Board denied the re-quest on the grounds that it was ambiguous and overly broad, and asked the realtor to identify the specific public records he sought to review. The realtor therefore filed a mandamus action to compel compliance under the Public Records Act. The Ohio Appellate Court denied the realtor’s general request to review all personnel files, reasoning that such a request was overbroad and accommodating it would place too great of a burden on the Board. However, the Board was required to make available for the realtor’s review any records contained in the personnel

record of any adult who was the subject of an executive session board meeting for a six-month range. Because this involved only a limited number and specific set of records, production of such documents would not place an unreasonable burden on the Board. – Janet Decker

Jefferson Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 378 P.3d 835 (Colo. Ct. App. 2016). County residents al-leged that four high school teachers participated in “sick-outs” to protest specific school board proposals. These protests caused the affected high schools to close for the day. Under a state records law, a county resident later requested records showing the names of teachers who were out sick at each high school on relevant dates. The school district and its records custodian decided to release the records. However, the teachers’ union argued that the records were part of the teachers’ personnel file and moved to deny their release. The trial court denied the motion, but granted a short stay of its judgment pending appeal.

On appeal, the appeals court affirmed the trial court order. Specifically, it held that a record documenting a teacher’s re-quest for sick leave is not part of the teacher’s personnel file. The court noted that sick leave requests were not included in the relevant statute’s definition of information included in a personnel file. Along the same lines, it also held that such requests pertain to compensation and benefits, which are specifically exempted from the information to be included in a personnel file. Therefore, the court reasoned that the district and records custodian were obligated to release the records as requested. – Benjamin White

Taxation/Funding

State ex rel. Walgate v. Kasich, 59 N.E.3d 1240 (Ohio 2016). Several plaintiffs filed a complaint against several state entities challenging the constitutionality of video lottery terminals and the act that authorized them, along with various legislative actions that related to Ohio’s four casinos. Included as plaintiffs were parents and a teacher of public school stu-dents who claimed an interest in ensuring that public schools received the proper funds generated from the lotteries and casinos. The state moved to dismiss the action on the grounds that the plaintiffs lacked standing and failed to state a claim upon which relief could be granted. The state’s motion was granted by the trial court and affirmed by the appellate court. The Supreme Court of Ohio agreed that neither the parents nor the teacher had standing in this case because the asserted interest was not one uniquely held by the plaintiffs; rather, the interest in ensuring that the public school system received the proper funds was one shared by the general public. – Janet Decker

Columbus City Schs. Bd. of Educ. v. Franklin Cnty. Bd. of Revision, 58 N.E.3d 1126 (Ohio 2016). The owner of a 240-unit apartment complex filed a complaint for an earlier tax year, seeking a nearly $4 million reduction from the auditor’s valuation. At a hearing before the Franklin County Board of Revision (BOR), the owner presented an appraisal by a certi-


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fied appraiser, who proposed a property valuation supporting the decrease, which the BOR adopted. The local Board of Education (Board) appealed. The Board of Tax Appeals (BTA) adopted the appraisal valuation provided by the owner’s certi-fied appraiser without adjustment and without discussion of other issues raised by the Board. The Board again appealed, arguing that the absence of market data from the appraisal report and other flaws in the appraisal rendered the appraisal defective and unreliable. The Ohio Supreme Court affirmed, holding that the Board did not establish an abuse of discretion in the BTA’s decision to credit the appraiser’s testimony and report. – Janet Decker

Oak View Props., LLC. v. Franklin Cty Bd. of Revision, 58 N.E.3d 1133 (Ohio 2016). An Ohio board of education (Board) appealed the local Board of Tax Appeals’ (BTA) acceptance of the county’s Board of Revision’s (BOR) reduced property valu-ation. However, the Ohio Supreme Court rejected the Board’s argument, reasoning that it had not raised and preserved those claims before the BTA. – Janet Decker

Bd. of Educ. of the Westerville City Sch. v. Franklin Cty. Bd. of Revision, 57 N.E.3d 1126 (Ohio 2016). After requests for the county auditor to reduce the assessed property valuations for three undeveloped lots were granted, the school board appealed the reduction to the Board of Tax Appeals (BTA). The BTA reversed the Board of Revision’s reduction, instead adopting higher valuations for the properties as presented by an expert for the school board. The property owners appealed, claiming that the appraiser could not use a sale from years earlier as a comparable property for assessment purposes. The Supreme Court of Ohio affirmed the BTA’s decision, reasoning that even when a sale is not presumed recent, an appraiser may use it as a comparable, after making necessary adjustments, when determining the subject property’s value. Furthermore, the BTA has discretion to consider remote sales, and determining their probative value as adjusted by the appraiser lies within the BTA’s fact-finding discretion. – Janet Decker

Tort Liability

Slane v. City of Hilliard, 59 N.E.3d 545 (Ohio Ct. App. 2016). While crossing a busy street in the early morning to attend her “zero” period class, a high school student was struck by a vehicle. At the time of the accident, the school zone flash-ers were not yet activated, as they did not begin flashing until “normal” classes began one hour after “zero” period courses. Additionally, the pedestrian traffic lights at the intersection where the student was were not working, neither on the day of nor for several days/months prior to the accident. The stu-dent filed a negligence claim against the city and the school district, asserting that both were negligent in failing to repair the malfunctioning pedestrian traffic signal and to illuminate the school zone flashers for the “zero” period time, factors that led to her injuries. The lower court granted summary judgment in favor of the city and school district by finding that both defendants were entitled to statutory immunity, and

the student appealed. In affirming the lower court’s decision in favor of the defendants, an Ohio appellate court held that even if the school district owed the student a duty with respect to the sign and signal, it was immune from liability because the student’s injuries occurred on a public roadway and not within the grounds or buildings the district used in connection with the performance of its governmental function. Similarly, although a city is not automatically immune from liability for injuries occurring on public roads, because neither school zone signs nor pedestrian walk signals qualify as public roads, the city was deemed immune from liability for the student’s injuries. – Janet Decker

Barillaro v. City of New York, 38 N.Y.S.3d 697 (N.Y. Sup. Ct. 2016). The petitioner, Luigi Barillaro, sought an order allowing him to obtain pre-action discovery of a surveillance video in connection with his personal injury claims against defendants. Barillaro was working as a plumber on a construc-tion and renovation project at JFK High School in the Bronx, installing new natural gas lines to laboratory classrooms, when a gas explosion injured him and two others. Several people were in and out of the classroom in question, all of whom were captured by video surveillance. The court granted the petition, reasoning that allowing the petitioner to view the video dur-ing discovery would level the playing field, as well as aiding the petitioner in constructing his complaint. – Maureen Fox

J.P. v. Smith, 134 A.3d 977 (N.J. Super. Ct. 2016). A for-mer student brought claims under the Child Sexual Abuse Act against a high school and board of education for the school’s assistant band director’s repeated acts of sexual abuse. The trial court denied the defendant’s motion to dismiss on the basis of the statute of limitations. On appeal, the defendant argued that the plaintiff’s claims were barred by the statute of limita-tions, which began to accrue when the plaintiff terminated her pregnancy resulting from the sexual abuse, and reported the assistant band director’s sexual abuse to her parents. A New Jersey appellate court held that the time for the former student to file her claims under the Child Sexual Abuse Act against a high school teacher accrued from the date the former student’s abuser confessed, which caused the plaintiff to know of the abuse. – Joseph Nelson

Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57 (Mo. Ct. App. 2016). After Lackey, an eighth-grader, suffered an injury during an organized game in gym class, he sued the school district and the gym teacher. The trial court granted summary judgment to the school district based on sovereign immunity, and to the gym teacher under the Teacher Protec-tion Act. On appeal, Lackey argued that the teacher created a dangerous condition by designating the game near walls, making his injury foreseeable. The appellate court affirmed the trial court’s decision as to the school district because Lackey did not prove a dangerous condition exception to sovereign immunity. However, it reversed the trial court’s decision as to the gym teacher, finding that the teacher did not establish immunity because the teacher’s appellate brief argued facts



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that were not cited to any of those of the summary judgment record. – Joseph Nelson

Boatright v. Copeland, 783 S.E.2d 695 (Ga. Ct. App. 2016). The plaintiff injured his hand while assisting in firing a cannon owned by the school district during a football game. He subsequently brought suit against the superintendent and the school board members on the theory that the defendants were negligent in allowing the cannon to be present and used in a school safety zone and at the school function, in viola-tion of Georgia law. The court held that firing the cannon as part of a football game’s festivities could not be considered “classroom work” for purposes of the exception to the general prohibition of weapons on school property. The defendants’ erroneous hypothetical interpretation of the exception to the prohibition against weapons did not entitle them to official im-munity, because complying with the criminal law of a state is a ministerial duty and not discretionary. The court also ruled that the plaintiff sufficiently stated a claim against the individual defendants. Therefore, the court reversed the dismissal of the claim. – Lauren Holler

Saponara v. Lakeland Cent. Sch. Dist., 29 N.Y.S.3d 491 (N.Y. App. Div. 2016). More than 5½ months after a student was injured during recess, his father commenced a proceeding for leave to serve late notice of a personal injury claim against the school and school district. Reversing the lower court, the appellate court held that (1) the student’s father was not entitled to serve late notice where the father did not proffer any excuse for failure to serve timely; (2) the student’s infancy alone was insufficient alone to constitute a reasonable excuse; (3) a student incident report prepared by the school nurse failed to provide the defendants with actual knowledge of essential facts underlying the claim; and (4) the father failed to rebut the defendants’ assertion that they would be substantially prejudiced in their ability to conduct an investigation so many months after the incident. – Lauren Holler

Teacher & Administrator Employment


O’Meara v. State Dep’t of Mgmt. Servs., 189 So. 3d 308 (Fla. Dist. Ct. App. 2016). O’Meara was teaching at school when a student threw an object that struck him near his eye, causing stress because he was already blind in one eye. This event led to O’Meara’s retirement due to post-traumatic stress disorder. After retirement, O’Meara applied for in-line-of-duty retirement benefits attributed to his disability from a workplace injury. The State Retirement Commission denied O’Meara’s application, to which appeal was granted. A Florida appellate court stated that an individual must prove that his injury was work-related and a substantial or aggravating cause of his permanent disability in order to establish entitlement to in-line-of-duty benefits. The court reversed the Commission’s findings, holding that it failed to analyze the second prong

of the test, whether the injury was substantial or aggravating cause of disability, in considering in-line-of-duty benefits. – Joseph Nelson

Discrimination

Benjamin v. Sparks, 173 F. Supp. 3d 272 (E.D.N.C. 2016). Saul Hillel Benjamin was hired in February 2013 as head-master and CEO for The Epiphany School of Global Studies, a private school founded by Nicholas Sparks and supported by the Sparks Foundation. Benjamin perceived there to be a lack of diversity at Epiphany, and he openly advocated for hiring African American faculty members. In the fall of 2013, Sparks spoke with Benjamin on several occasions regarding his efforts to increase diversity at Epiphany, inquiring about Benjamin’s investigation of student bullying based on sexual orientation, telling Benjamin not to criticize the director of admissions for failing to recruit African American students, questioning Benjamin regarding his attendance at an event keynoted by a member of the NAACP, and asking Benjamin not to discuss any non-Christian religion at any Epiphany function. Sparks and two board members met with Benjamin in late November 2013 and asked him to resign for unspeci-fied cause. Benjamin filed suit against Epiphany, Sparks, the foundation, and individual board members in October 2014, citing several claims, including discrimination and harassment based on his Jewish race, tortious interference, and false im-prisonment during the termination meeting. The court found that the individual board members, while making insensitive comments regarding Benjamin’s race, did not engage in severe or pervasive conduct, nor did they have the individual author-ity to terminate Benjamin’s employment. All claims against the individual board members were dismissed. The tortious interference claims were also dismissed; Sparks informed an education recruiter that Benjamin had been terminated due to mental illness, but there was no prospective contract for Benjamin with a new employer or reasonable expectation of a future relationship between Benjamin and the recruiter. Other claims against Epiphany, Sparks, and the Foundation remained active. – Catherine Robert

Fratello v. Roman Catholic Archdiocese of New York, 175 F. Supp. 3d 152 (S.D.N.Y. 2016). Following her nonrenewal as principal of a Catholic elementary school, Joanne Fratello filed suit alleging gender discrimination and retaliation. The Archdiocese, in its motion for summary judgment, cited a “ministerial exception”, as established in Hosanna-Tabor Evang. Lutheran Church v. EEOC, 565 U.S. 171 (2012), which precludes a minister from bringing retaliation and discrimination claims against a church. The court applied the holistic examination of the four factors identified in Hosanna-Tabor: (1) whether the employee was considered a minister and distinct from most members, (2) the employee’s title, (3) whether the employee held herself as a minister, and (4) the employee’s job responsibilities. In finding for the defendant and awarding summary judgment, the court held that while Fratello did not consider herself a minister of the church, both


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the job duties and job description clearly indicated the unique responsibility of the principal to function as a minister of the church through the duty to lead prayer and forward the mission of the church through the school. Accordingly, the defendant was exempt from discrimination claims, and Fratello’s claim was terminated. – Catherine Robert

Chadwick v. Duxbury Pub. Schs., 59 N.E.3d 1143 (Mass. 2016). In a case in which a former high school English teacher alleged the school district retaliated and discriminated against her, the teacher objected to certain discovery requests by asserting a “union member-union” privilege. Specifically, the school board demanded production of communications between the union member and her union representatives. A Massachusetts trial court rejected the teacher’s assertion of privilege and entered an order compelling her to produce the requested discovery. As a matter of first impression, the Supreme Court of Massachusetts affirmed the lower court’s rejection of a “union member-union” privilege. The Court reasoned that the plain language of the relevant state statute did not protect communications between union members and union representatives when an employee brings a civil action against her employer alleging employment discrimination. Thus, the former teacher was required to produce such com-munications during discovery. – Janet Decker

Figueroa v. N.Y. State Division of Human Rights, 38 N.Y.S.3d 857 (N.Y.A.D. 1 Dept., 2016). Female school em-ployees brought separate proceedings to annul the dismissal of their claims alleging sexual harassment and retaliation by the New York State Division of Human Rights. Under the New York Human Rights Law, an employer cannot be found liable for an employee’s discriminatory acts unless the employer en-couraged, condoned, or approved the acts. The court dismissed the petition to annul, finding that the school district waived its contention that employees’ actions should be dismissed for failure to properly serve the district because they did not move to dismiss within sixty days after serving its answer, and that the statute of limitations for the employees’ petitions began on the date of the Division’s order. – Maureen Fox

Idom v. Natchez-Adams Sch. Dist., 178 F. Supp. 3d 426 (S.D. Miss. 2016). In a previous case, a Caucasian former el-ementary school principal brought suit against Natchez-Adams School District, an African American superintendent, and deputy superintendent alleging claims of (1) racial discrimina-tion in violation of Title VII; (2) Section 1983 violation of her equal protection and due process rights; (3) negligent hiring, retention, supervision, and control; (4) intentional or negligent infliction of emotional distress; (5) defamation; (6) breach of employment contract; (7) tortious interference with employment contract/business relations; and (8) breach of district policies and procedures. The district court granted the defendants’ motion for summary judgment on due process, negligent hiring and supervision, defamation, and tortious interference claims. Following a jury trial, judgment was entered in favor of the principal on claims for breach of contract, Title VII

race discrimination and a racially hostile work environment, equal protection, and intentional infliction of emotion distress claims. The defendant school district moved for judgment as a matter of law, or in the alternative motion for a new trial, or in the alternative motion for remittitur.

The district court held that substantial evidence supported the following findings: (1) The principal was constructively discharged from employment within the meaning of Title VII; (2) Substantial evidence supported the finding that race was a factor in the principal’s constructive discharge; (3) The school district failed to show manifest injustice from the principal’s late disclosure of mitigation of damages, and thus the school district was not entitled to a new trial on Title VII claims; (4) The school district failed to demonstrate that it was not prejudiced by inattention on the part of one or more jurors; (5) The evidence was sufficient to sustain a verdict against the superintendent and deputy superintendent on the principal’s claim for intentional infliction of emotional distress; and (6) The award of $100,000 in compensatory damages was not clearly excessive. – Brett Geier

Fiorentini v. William Penn Sch. Dist., 150 F. Supp. 3d 559 (E.D. Penn. 2016), aff’d, 2016 U.S. App. LEXIS 22462 (6th Cir. Dec. 16, 2016). A former employee of the William Penn School District brought a discrimination case against the district alleging that she was discriminated against due to her age and disability, and that the district interfered with her right to medical leave. The plaintiff was hired as a literacy coach and certified reading specialist, and although she was certified as a reading specialist, she did not possess a Pennsylvania Elementary Teaching Certificate. In September 2009, she was working with kindergarten through sixth-grade students, and was diagnosed with breast cancer. After reporting this to her principal, she was reassigned from her full-time literacy coach position to a combination literacy coach/reading specialist position. The plaintiff viewed this as a demotion because the reading specialist position required fewer qualifications and she had fewer students to instruct. The job change did not impact her job title or salary. Her medical treatment required her to request and receive a Family and Medical Leave of Absence and, eventually, an unpaid medical leave. She then was granted sick bank days and an approved medical sabbatical.

During two separate district reorganizations due to budget cuts, the plaintiff did not meet the requirements in new posi-tions created by the district. All reading specialist and literacy coach positions were scheduled for elimination, and a position for an instructional specialist K-6 was created for existing employees, but the plaintiff did not apply because she was told she did not qualify for the job. At the end of the school year, the district eliminated the position of instructional specialist and created a school site facilitator position that required a minimum of three years of classroom teaching experience. In August 2011, the plaintiff was told she was being furloughed because her certification as a reading specialist did not meet any of the positions in the district at that time.

The court ruled that the plaintiff did not establish a case of discrimination based on age because she failed to demon-



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strate she suffered an adverse employment action since her reassignment had the same salary, reporting requirements, and similar general duties. Although the district conceded that the plaintiff suffered an adverse employment action after being furloughed in 2011, she was unable to point to younger, similarly situated individuals who received more favorable treatment. The plaintiff was the only employee who possessed only the reading certificate, and those who were hired in the reorganization could not be considered “similarly situated.” Additionally, at least two selected for the new positions were older than the plaintiff.

The court also held that there was no Family Medical Leave Act (FMLA) interference because the plaintiff was provided with all of the entitlements of the FMLA. Finally, the court held that since the plaintiff was not qualified for further employment by the district because she lacked the proper certification, she was not a “qualified individual” under the Americans with Disabilities Act (ADA) and could not establish a case of discrimination. – Robert F. Hachiya

Holt v. Deer-Mt. Judea Sch. Dist., 135 F. Supp. 3d 898 (W.D. Ark. 2015). A female elementary school principal em-ployed by Deer-Mt. Judea School District, Holt, alleged she was discriminated against based on sex, claiming that she was paid less than her male comparator and that she did not receive the same level of benefits. She also claimed that two other male elementary school principals with less experience were paid the same as she was. Holt brought claims against the school district under Title VII of the Civil Rights Act of 1964, The Equal Pay Act, 42 U.S.C. § 1983, the Arkansas Civil Rights Act, and an Arkansas statute which prohibited wage differences based on sex. The school district moved to dismiss, arguing that the claims were barred by the statute of limitations. The district court denied the school district’s motion to dismiss, holding that each disparate paycheck resets the 180-day clock to file a discrimination claim, and that Congress clearly meant for this rule to apply to prior acts through the retroactivity provision of the Lilly Ledbetter Fair Pay Act of 2009. – Joseph Nelson

Sherrod v. Bd. of St. Lucie Cnty., 635 Fed. App’x 667 (11th Cir. 2015). Sherrod, an African American man who suf-fers from lupus, was a teacher on a contract subject to annual renewal. Over the course of his employment, he complained about his new supervisor and alleged many grievances, includ-ing the school’s failure to provide services to disabled students. He also requested accommodations for his lupus that were denied. The school learned that, in his job application, Sherrod had left out information about a legal dispute he had with his past employer. As a result, the school suspended him with pay for three weeks. The school generally provided teachers with a mid-year review, but Sherrod did not get one. Instead, the school decided not to renew his contract. Sherrod then filed suit claiming that the school impermissibly retaliated against him for voicing his concerns about its failure to provide services to disabled students, and that he had been discriminated against on many grounds.

The court of appeals held that the district court was correct to grant summary judgment to the defendants on Sherrod’s race discrimination claim because the plaintiff did not rebut the presumption that the school’s stated legitimate reasons were its actual reasons for not renewing his contract. The court also held that all of Sherrod’s First Amendment retaliation claims failed because he did not establish that the speech at issue was constitutionally protected. The court reasoned that, when read in context, Sherrod’s grievances were aimed at advancing his private interest rather than raising issues of public concern. Finally, the court ruled that Sherrod’s claim in his amended complaint, that the school discriminated against him in violation of the Americans with Disabilities Act (ADA) by denying him reasonable medical accommodations, was properly dismissed as time-barred. The ADA claim could not relate back to the original complaint for the purposes of the limitations period because the original complaint did not mention Sherrod’s dis-ability or requests for medical accommodation. As such, the district court’s decision was affirmed. – Lauren Holler

Dismissal, Nonrenewal & RIF

Williams v. City of New York, 38 N.Y.S.3d 528 (N.Y. App. Div. 2016). The plaintiff, a tenured eighth-grade teacher, was terminated for asking what the defendant believed were inap-propriate questions of female students regarding their female relatives. He filed this petition to vacate the arbitration award that resulted in his termination. Defendants claimed that the petitioner asked female students if they had older sisters, how old they were, whether they had boyfriends, and whether they had photos of their older sisters. At arbitration, the hearing officer did not find that the petitioner actually intended to have romantic/sexual interactions with anyone. The court found there was no evidence that the plaintiff made any sexual comments to his students, and that while Williams showed poor judgment, the termination was disproportionate to the offense. The arbitration award was vacated, with one strong dissent. – Maureen Fox

Olmsted v. St. Paul Pub. Sch., 830 F.3d 824 (8th Cir. 2016). Timothy Olmsted filed suit against the St. Paul Public Schools claiming his resignation was tendered under duress and as a result of misrepresentations by the school. Olmsted and been placed on administrative leave due to allegations of inappropriate conduct toward students. He attempted to rescind his resignation, which the school refused to accept. The district court dismissed Olmsted’s claims because he had been made aware of the facts of the case, had time to consult with his attorney, and had ample time to reflect. Also, the court found no evidence of misrepresentations by the school district. The Eighth Circuit Court of Appeals affirmed. – Stewart Mayers

Dukes-Walton v. Atlanta Indep. Sch. Sys., 784 S.E.2d 37 (Ga. Ct. App. 2016). After a state-wide analysis of erasure marks on standardized testing results was conducted, it was determined that an unusually high number of answers were


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changed from wrong to right at Star Elementary School. The court of appeals held that sufficient evidence existed to sup-port termination of the elementary school’s principal for good and sufficient cause when evidence showed that the principal personally told teachers in a fifth-grade hallway—either on the morning of test administration or the Friday before—how many students could fail a standardized test, and had distributed testing goals with the testing materials themselves. The court reasoned that “even if [the principal] did not actually direct teachers to cheat on the standardized test, a trier of fact could reasonably conclude that she was responsible for creating an environment in which cheating was implicate encouraged.” Furthermore, the court held that the principal’s due process rights were not violated when the charges were amended against her during the tribunal hearing, since she had advance notice of the evidence against her and had the opportunity to defend herself. Moreover, the court concluded that the decision to terminate the principal was not arbitrary or capricious, and she was not harmed by the admission of improper evidence or the failure to include evidence. – Lauren Holler


Dearman v. Stone Cnty. Sch. Dist., 832 F.3d 577 (5th Cir. 2016). Kristi Dearman filed suit against the Stone County School District claiming her termination from the district was in retaliation for her support of a candidate for county superintendent. The district court held, and the Fifth Circuit affirmed, that no violation of Dearman’s free speech rights had occurred. Grounds for her termination had been her unauthor-ized accessing of confidential student records in violation of FERPA. – Stewart Mayers

Athletics

Title IX

Gordon v. Bd. of Trustees of the Univ. of Arkansas, 168 F. Supp. 3d 1148 (E.D. Ark. 2016). The plaintiff, Cole Gordon, brought this action under 42 U.S.C. § 1983, 42 U.S.C. § 1985, Title IX of the Education Amendments, and state law civil rights and whistleblower statutes, following his resignation as an assistant baseball coach at the university. He alleges that he was forced to resign because of his allegations of misuse of funds, harassment by his supervisor of players on the baseball team, and sexual harassment by his supervisor of the players’ significant others. The federal district court dismissed Gordon’s Section 1983 and Section 1985 claims against defendants in their official capacities as barred by the Eleventh Amendment, given that his pleadings failed to seek prospective relief. Similarly, Gordon’s claims against defendants in their indi-vidual capacities under Section 1983 and Section 1985 were dismissed under the defendants’ theory of qualified immunity;

the court found that Gordon had failed to allege a violation of his First Amendment rights because his complaints were not as a private citizen on issues of public concern and that he failed to allege he was discriminated against because of his sex under the Equal Protection clause. Gordon’s state law claims were also dismissed on the basis of state law statutory immunity because defendants were all acting within the scope of their employment. Finally, the court dismissed the plaintiff’s claim of impermissible retaliation under Title IX because it did not find facts to support an objectively reasonable belief on Gordon’s part that his supervisor’s crude comments about baseball players’ significant others constituted unlawful dis-crimination. – Thomas J. Graca

Board of Trustees

Financial Affairs

Atlanta Dev. Auth. v. Clark Atlanta U. Inc., 784 S.E.2d 353 (Ga. 2016). Clark Atlanta University, Inc. (“CAU”) donated three parcels of property to Morris Brown College (“MBC”). The deed provided that the “property is conveyed subject to the condition that [MBC] shall use the same for educational purposes.” The deed then described particular educational purposes and included a reverter clause stating: “[if] at any time the said [MBC] shall cease to use said property for the particular educational purposes above set forth, the title to said property shall revert to and become vested in the Grantor, or its successors.” MBC sold the property to the defendant, and CAU filed a complaint seeking declaration and judgment that CAU held a valid automatic reversionary interest in the property that was triggered once the property was sold. The defendant moved to dismiss the complaint, challenging the validity, scope, and application of the restriction and the reverter.

The Supreme Court of Georgia held that because the property was transferred to a charitable group for charitable purposes, the restriction and the reverter were valid as an exception to the general rule against perpetuities. The court next determined that according to the unambiguous language of the deed and the intent of the parties, the restriction applied to all three parcels of property. Because the restriction and the reverter create a limitation upon the property, a fee simple determinable estate was gifted to MBC. Since the express use for the donated property was “educational purposes,” and the deed specified what fields of study qualify as “educational purposes,” the court held that the sale of the property did not qualify as a proper use. Moreover, the deed provided that the reverter is triggered once MBC ceases to use the property. Ac-cordingly, the Supreme Court of Georgia held that CAU had a valid reversionary interest in the property and affirmed the superior court’s judgment denying the defendant’s motion to dismiss. – Lauren Holler

Higher Education



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Jurisdiction

Med Exp. v. Univ. of Colorado Denver, 49 N.E.3d 729 (Ohio App. 9 Dist. 2016). Med Express filed a complaint against the University of Colorado Denver after it returned a damaged diagnostic unit, but failed to notify the extent of the damages and returned it uninsured, such that Med Express was unable to file a claim through delivery insurance for the damages to the unit. The university did not appear at trial, which an Ohio trial court held in favor of Med Express. The issue on appeal was whether the trial court had personal jurisdiction over an out-of-state buyer. The appellate court vacated the trial court’s decision, reasoning that the university’s contact with Ohio did not rise to the level of contact sufficient for the trial court to exercise personal jurisdiction over the matter. – Joseph Nelson

Tort Liability

Emery v. Talladega Coll., 169 F. Supp. 3d 1271 (N.D. Ala. 2016). The plaintiff, Emery, was a student at Talladega College who was shot by an unknown assailant on the college’s campus. He claimed that the college failed to adequately provide for his safety, fraudulently failed to pay the medical bills associated with the gunshot wound, misled him about the prevalence of crime on campus, and fraudulently misrepresented the scope of its academic offerings to him. The federal district court granted summary judgment to the college and other defendants on all claims. On Emery’s claim that the college “negligently or wantonly failed to provide for his safety,” the court found that the shooting was not sufficiently foreseeable to constitute special circumstances, nor did Emery’s status as a student of the college give rise to a special relationship to overcome the general rule under Alabama state law that “a person has no duty to protect another from criminal acts of a third person.” In similarly rejecting Emery’s claim that the college committed promissory fraud by asserting that it would pay Emery’s medical bills and then failed to do so, the court found that Emery had not pled that he had relied on the college’s alleged promise in making any medical or financial decisions. Emery’s claim that the college had fraudulently suppressed crime information from him was also unsuccessful because he had failed to provide evidence that he had suffered actual damage as a proximate result of the alleged concealment. Finally, Emery alleged that the college fraudulently misrepresented that it offered an engi-neering program to induce his enrollment; summary judgment was granted to the defendants on this claim as well, because Emery did not offer any evidence to suggest that he had suf-fered an injury which was the proximate cause of the alleged misrepresentation. The court granted summary judgment to the college and other defendants on all counts, and suggested that it will enter final judgment for defendants. – Thomas J. Graca

Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298 (3d Cir. 2016). The appellants contended that the appellee law school’s alleged publication of misleading post-graduation employment statistics caused them to pay “inflated” tuition

as law school students. They sought to certify as a putative class all tuition-paying students who were enrolled at the law school during the statutory limitations period. Following the district court’s denial of class certification, appellants brought this interlocutory appeal. A three-judge panel of the Third Circuit affirmed the district court’s ruling that class certifica-tion was not appropriate because individual questions would predominate over common questions. The primary way in which this applied was with respect to the fact of potential damages. Appellants had put forward a price-inflation theory of damages in which the fact of damages would have been common; however, the court determined that the price-inflation theory was not cognizable outside of federal securities fraud cases. – Thomas J. Graca

Simon v. Northwestern Univ., 175 F. Supp. 3d 973 (N.D. Ill. 2016). Simon alleged that the unethical investigative jour-nalism practices of Northwestern University faculty, students, and a contracted private investigator led to his prosecution and wrongful conviction for two homicides. (The convictions subsequently had been vacated at the suggestion of the State’s Attorney’s Office.) Specifically, he alleged that the defendants had coerced false statements from four witnesses and had unlawfully coerced a false confession from Simon himself. Following Simon’s agreement to dismiss some of his claims, the federal district court considered the defendants’ motion to dismiss the remaining claims of malicious prosecution and civil conspiracy (against all defendants) and the remaining claim of respondeat superior liability (against the university). With respect to the defendants’ motion to dismiss the malicious prosecution claim, the court found that Simon had sufficiently alleged that defendants had knowingly presented false evidence, that the State’s Attorney’s subsequent investigation based upon the false evidence was not sufficiently independent to cut off defendants’ liability, and that the claims were otherwise plausible. Therefore, the court permitted Simon to proceed on his malicious prosecution claim against the Northwestern faculty member and the private investigator. Similarly, Simon was permitted to proceed on the malicious prosecution claim against the university under the theory of respondeat superior liability. Defendants also sought to dismiss Simon’s claim of civil conspiracy both as time-barred and for failure to state a claim. Finding that the civil conspiracy claim was initiated within the statutory limitation period and that Simon had sat-isfactorily alleged facts sufficient to demonstrate the existence of an agreement between two of the defendants to commit the tortious act of malicious prosecution, the court permitted Simon to proceed on his civil conspiracy claim against the North-western faculty member and the private investigator, as well. As with the malicious prosecution claim, the court permitted Simon to proceed against the university on the civil conspiracy claim under the respondeat superior theory. – Thomas J. Graca

Smith v. Iowa State Univ. of Sci. & Tech., 885 N.W.2d 620 (Iowa 2016). The plaintiff sued Iowa State University, his former employer, for violations of whistleblower protections


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and intentional infliction of emotional distress (IIED). The whistleblower claim allowed for recovery of attorney fees and costs, while the IIED claim did not. The plaintiff was initially awarded $784,027 for the whistleblower claim and $500,000 for the IIED claim, but the whistleblower claim was reduced to $150,000 on appeal. Afterward, the trial court awarded the plaintiff $368,607 in fees and costs, which covered virtually all the plaintiff’s attorney fees. The university appealed the fee award, arguing that it should be reduced to only cover work performed on the whistleblower claim and to account for the plaintiff’s overall lack of success with that claim. The intermediate appellate court agreed, directing the plaintiff’s counsel to submit records detailing the amount of time spent on each task. The plaintiff then applied to the Supreme Court of Iowa for further review. The state supreme court held that when a trial court awards fees under a fee-shifting statute, it must follow a two-step process: First, while the trial court may award fees for time devoted to the litigation as a whole, it should reduce the overall fee award for unrelated time spent on unsuccessful claims or claims for which fees are not recover-able. Second, if the plaintiff’s success on a claim for which fees are recoverable was partial or limited, then the court should further reduce the fee award to be reasonable in light of the ultimate result. The state supreme court further held that the plaintiff’s counsel should not be required to submit detailed time records, but that the trial court should account for the absence of necessary detail when determining the appropri-ate fee award. Accordingly, the state supreme court vacated the intermediate appellate court’s decision, reversed the trial court’s decision in part, and remanded the case for further proceedings. – Stephen Worthington

Community Colleges


Calhoun Comty. Coll. v. Hudson, 200 So. 3d 1175 (Ala. 2016). The defendant, Hudson, was hired as a full-time adult literacy instructor at Calhoun Community College. The col-lege operated two parallel programs: an adult literacy program funded by the state, and an adult education program funded by the federal government. The two programs had two state-approved salary schedules; Hudson was paid pursuant to the D-1 schedule, wherein he was paid more money than he would have under the D-3 schedule approved for the adult-education instructors. In 2013, Calhoun decided to end the adult literacy program, leaving Hudson with the option of either accepting the offer of a transfer to the adult education program or accepting termination of his employment. In response, Hudson requested a hearing regarding Calhoun’s intent to transfer him. The hear-ing was scheduled for November 19, 2014 with notice that any request for subpoenas should be made on or before November 7, 2014. The hearing was later rescheduled for December 1, 2014 and counsel for Hudson, for the first time on November 21, 2014 requested that Dr. Beck, Calhoun’s president, issue several subpoenas. Calhoun moved to quash the subpoenas

since they were untimely, which was granted by Dr. Beck. After the December 1 hearing, Dr. Beck entered a decision allowing Hudson’s transfer to the adult education program, a decision that was overturned by a hearing officer on June 10, 2015. The hearing officer found that the decision to deny the request for the subpoenas was arbitrary and capricious and deprived Hudson of his due process rights. The hearing officer further found that Hudson should retain his status as an adult literacy instructor at the higher pay rate. Calhoun now appeals.

On appeal, the court found that once the hearing had been rescheduled, there was ample time for Calhoun to issue the subpoenas, given the statutory mandate requiring Dr. Beck to issue subpoenas upon timely request. However, the court dis-agreed with the hearing officer to the extent that he reinstated Hudson to this adult literacy instructor position. Rather, the court found that once a determination had been made that the subpoenas should have been issued, a new hearing should have been held. As such, the latter portion of the hearing officer’s decision was reversed and the case was remanded for a new hearing to proceed before the employer. – Marilyn Anglade

Financial Affairs

Daza v. Los Angeles Cmty. Coll. Dist., 247 Cal.App. 4th 260 (CA Ct.App. 8 Div. 2016). Daza, a guidance counselor formerly employed by Los Angeles Community College Dis-trict, was sued along with the district by an adult student who alleged that Daza sexually assaulted her when she went to his office for counseling services. Public employers are required to defend and indemnify their employees for third-party claims arising out of acts within the scope of employment under California law. Where the public entity refuses to defend, the employee can seek a writ of mandate or fund his own defense and then sue for reasonable attorney fees, costs and expenses. When the district refused to defend him, Daza paid for his own defense and filed a cross-complaint denying the allegations of sexual assault and sought reimbursement for his defense. The lawsuit for sexual assault was settled and dismissed without an admission of liability and without a factual determination of whether Daza was acting within the scope of his employ-ment. The district demurred to the cross-complaint, arguing that because the case was settled, Daza was not required to pay any claim or judgment, and that Daza’s claim for reimburse-ment of his defense and a writ of mandate failed because his alleged conduct fell outside the scope of his employment. The trial court sustained the district’s demurrer, determining that the court was limited to reviewing the allegations in the main lawsuit, which showed that Daza was acting outside the scope of his employment during the alleged sexual assault.

The court of appeals first concluded that the alleged acts of sexual assault did fall outside the scope of employment. However, the court of appeals reversed the trial court’s deci-sion, holding that under a proper interpretation of California law “the determination of whether an employee acted within the scope of employment is factual and cannot be limited to the third party’s allegations in the underlying lawsuit when



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the employee denies those allegations, and the employee’s version of events would demonstrate acts within the scope of employment.” The court credited, at the demurrer stage, Daza’s allegation that no sexual assault occurred, and thus he was acting within his scope of employment as a counselor. Daza accordingly stated a claim for reimbursement of his defense costs. – Lauren Holler


Meade v. Moraine Valley Comty. Coll., 168 F.Supp.3d 1094 (N.D. Ill., 2016). Meade, an adjunct faculty member, sued claiming that her termination was in violation of her First Amendment rights and due process. The United States District Court for the Northern District of Illinois dismissed the action, and Meade appealed. The Seventh Circuit Court of Appeals reversed and remanded. Both parties cross-moved for summary judgment. Meade, as president of the Moraine Valley Adjunct Faculty Organization (MVAFO), was asked to prepare a letter of recommendation in that capacity supporting the College’s affiliation with the League for Innovation in the Community College. Meade claimed that she refused to write the letter of recommendation and instead wrote a letter on be-half of MVAFO members. The letter set forth the position of MVAFO members regarding complaints and criticisms from adjunct faculty members regarding their workplace conditions. Meade sent the letter only to the League. She then received a letter terminating her employment at the college. The College argued that the evidence shows that the letter addressed private interests and not a matter of public concern. The court asserted that it is difficult to see how any part of the discussion in the letter could be considered purely personal to Meade, or of no interest to the public. Both motions were denied. – Joe McNabb

Nonacademic Personnel Employment

Discrimination

Jackson v. Gallaudet Univ., 169 F.Supp.3d 1 (D.D.C. 2016). Jackson, the plaintiff, served as a school bus monitor for four years for Gallaudet’s Department of Transportation. She claimed that her employment at Gallaudet was terminated in violation of the Americans with Disabilities Act (ADA), Title VII, and the District of Columbia Human Rights Act (DCHRA). She sued Gallaudet alleging that the university refused to provide reasonable accommodation because she was deaf, subjected her to hostile work environment on the basis of her Jamaican national origin, and retaliated against her for having participated in protected activity. The court determined that Jackson was not subjected to a hostile work environment, but that she had stated a plausible discriminatory termination claim. As such, the university’s motion to dismiss was granted in part and denied in part. Jackson’s hostile work environment claims under the ADA and the DCHRA were dismissed, but in other respects her motion was denied without prejudice. – Joe McNabb

Employee Misconduct

Collins v. Northwestern Univ., 164 F. Supp.3d 1071 (N.D. Ill. 2016). Three police officers employed by Northwestern University were the subjects of a complaint by a fourth officer, claiming that the three had engaged in derogatory mocking behavior and language toward homosexuals. A university investigation was conducted, finding that the behavior had oc-curred. The three officers appealed the university’s conclusion and discipline, wherein they were suspended for three days without pay, given a shift change, received various demotions consistent with their position, prohibited from applying for reinstatement for six months, and given a final written warn-ing. The officers sued, claiming violations under Section 1981, Section 1983, Title VII retaliation, and state claims for tortious interference. The claims of all three officers were close enough in nature to be combined into one case. The court generally upheld the university’s motion for dismissal, but with some important exceptions. As a private university, Northwestern could not act ‘under color of state law’ and thus had no Sec-tion 1983 liability. Because the original complainant was not white, the officers claimed reverse discrimination under Sec-tion 1981, but the court was not convinced. The university’s dismissal motion was not granted for the portions of the suit that dealt with Title VII retaliation, primarily because the of-ficers received negative employment reviews after they filed their own responsive suit from the discipline action, which appeared to play a role in the officers not being hired by the municipal police department. – Barbara Qualls

Tort Liability

Legarde-Bober v. Oklahoma State Univ., 378 P.3d 562 (Okla. 2016). The petitioner, Legarde-Bober, was injured at work when she slipped and fell on ice while walking from her assigned parking spot to her place of work. All premises were owned and maintained by Oklahoma State University, the defendant. She sought compensation that was denied by the university, which asserted that her injury did not occur in the course of her employment. The ALJ found in favor of the defendant and, on appeal, the commission affirmed. In the next appeal, the Oklahoma Supreme Court reversed, finding that because the petitioner’s actions at the time of her injury were related to and in furtherance of the business of her university employer, and the petitioner was on the premises of the uni-versity, she was in the course and scope of her employment as defined by state law. – Elizabeth Lugg

William Marsh Rice Univ. and Gary Spears v. Rasheed Refaey, 495 S.W.3d 531 (Tex.App. Dist. 14 2016). The plain-tiff, Rasheed Refaey, was arrested by Gary Spears, a private university peace officer employed by William Marsh Rice University. The officer was in uniform and driving a univer-sity police department SUV when he made a traffic stop after observing the plaintiff’s suspicious behavior. Refaey drove for some time before stopping because he believed that university


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police did not have any right to stop him. He was arrested on suspicion of having committed the offenses of evading arrest and driving while intoxicated. Ultimately, all charges were dismissed. The plaintiff sued Spears and the university on various tort theories stemming from an alleged unlawful arrest. The officer asserted official immunity, and both he and the defendant university moved for summary judgment, but the lower court found in favor of the plaintiff. The Texas Supreme Court concluded that private university peace officers fall within the common meaning of the phrase “officer of the state” and remanded the case to the lower court to consider the merits of the appeal. After reviewing the evidence, the court concluded that at the time of the allegedly tortious conduct, the officer was performing official duties consistent with the university’s educational mission. Therefore, as a matter of law, the officer was entitled to immunity. – Elizabeth Lugg

Professor & Administrator Employment

Discrimination

Burton v. Board of Regents of the Univ. of Wisconsin, 171 F.Supp.3d 830 (W.D. Wis. 2016). Burton, a tenured as-sociate professor, sued the University of Wisconsin Board of Regents and three university employees alleging retaliation in violation of Title VII and Title IX. The Board of Regents moved for summary judgment.

Several years ago, Burton advocated for a student who complained of sexual harassment at the hands of another University of Wisconsin professor. Burton contended that as a consequence of her advocacy for this student and her subsequent efforts to assert her own rights, she had faced discrimination and retaliation from University of Wisconsin colleagues and administrators. The court stated that Burton’s department, like almost any workplace, has its abrasive personalities, and the department produces its share of annoyances and disputes, but employers are entitled to manage, and even reprimand, their employees. The court continued, stating that federal courts are not personnel departments, and federal retaliation law does not impose liability for every slight that an employee experiences. In this case, Burton had not provided evidence from which a reasonable jury could find that defendants retaliated against her. The court determined that the Board of Regents was entitled to summary judgment. – Joe McNabb

Moore v. Grady Mem'l Hosp. Corp., 834 F.3d 1168 (11th Cir. 2016). Moore was an African American assistant profes-sor at Morehouse School of Medicine who was required to maintain surgical privileges at the affiliated Grady Memorial Hospital. After the hospital suspended his surgical privileges in response to the “…continued performance of unauthorized surgical bariatric/weight loss procedures,” Moore brought action against the hospital and others under Sections 1981, 1983, 1986, and 2000d of Title VI of the Civil Rights Act, a state law claim for violation of hospital bylaws, and a state law claim for intentional infliction of emotional distress. The

federal district court had dismissed the federal claims on ap-pellees’ motion under Fed. R. Civ. P. 12(b)(6), and declined to exercise supplemental jurisdiction on the state law claims. Moore appealed the dismissal of his racial discrimination and retaliation claims under Section 1981. The central issue on appeal was whether the alleged racial discrimination im-paired Moore’s “enjoyment of all benefits, privileges, terms, and conditions” of his employment contract with Morehouse and/or the affiliation agreement between Morehouse and the hospital—which would be necessary for Moore to prevail under his Section 1981 claim. A three-judge panel of the Eleventh Circuit was not convinced that the affiliation agreement be-tween Morehouse and the hospital could provide the necessary contractual predicate. However, the court did find that Moore had pled facts sufficient to demonstrate that his employment contract with Morehouse could provide the contractual basis for his recovery under Section 1981. Therefore, the court reversed the district court’s summary judgment with respect to Moore’s claims of discrimination and retaliation under Section 1981 on the basis of Moore’s employment agreement with Morehouse, and remanded the case to the district court. – Thomas J. Graca

Students

Admission and Retention Criteria

Balyberdina v. National Institute for Psychotherapies, 30 N.Y.S.3d 80 (N.Y.A.D. 1 Dept. 2016). Balyberdina applied to the National Institute for Psychotherapies’ Adult Training Program. During Balyberdina’s preliminary year, she received negative evaluations, but was given a chance to reapply on a remedial basis. Although she may have had difficulties with her initial supervisor, the training program assigned her a new supervisor, from whom the applicant received uniformly nega-tive evaluations and no recommendations for admission to the program. She was given a chance to reapply to the program on a remedial basis in anticipation of her improved performance. Upon completion of a remedial preliminary year, the training program determined that the applicant’s progress was insuf-ficient for admission to the program. Balyberdina brought ac-tion against the training program, and the trial court dismissed the claim. On appeal, the applicant argued that the program violated Title IV of the Higher Education Act of 1965. A New York appellate court upheld the lower court’s decision, finding that Title IV did not apply because the training program was funded entirely through private means, and the program did not participate in Title IV, Higher Education Act programs, or any other federal assistance programs. The court further found the training program’s decision not to admit the applicant was rational and not arbitrary and capricious, made in bad faith, or contrary to its own policies and procedures. – Joseph Nelson

Contracts

Gillis v. Principia Corp., 832 F.3d 865 (8th Cir. 2016). The appellant, Grace Gillis, alleged that Principia College failed to



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follow the dispute resolution scheme (the “Matthew Code”) prescribed by the student catalog to resolve a conflict she had with a music professor, and thereby breached a contract with her. A three-judge panel of the Eighth Circuit affirmed the federal district court’s holding that the Matthew Code did not contain sufficiently “specific, discrete promises” to constitute a judiciable contract term. Gillis had also sought to recover for intentional infliction of emotional distress (“IIED”) and negligent infliction of emotional distress (“NIED”) following from the details of the same underlying conflict. In affirming the lower court’s dismissal of the IIED and NIED claims, the panel agreed that the music professor having allegedly “yelled at her, excluded her, ignored and threatened her, and refused to engage with her” did not rise to the level of IIED, and that Gillis had failed to allege a medically diagnosable injury which would be necessary to give rise to the NIED claim. – Thomas J. Graca

Discipline

Dempsey v. Bucknell Univ., 834 F.3d 457 (3d Cir. 2016). Dempsey, an undergraduate student at Bucknell University, had been accused of the state law crimes of simple assault, harassment, disorderly conduct, indecent assault, and false imprisonment, following a series of incidents with another undergraduate student. (Ultimately, the District Attorney de-clined to prosecute the alleged criminal offenses.) Dempsey brought an eighteen-count action against the university and others under Section 1983, contending that their roles in his criminal prosecution constituted false arrest, malicious pros-ecution, false imprisonment, supervisory liability, violations of Title IX, civil conspiracy, as well as state law claims for negligence and breach of contract. The federal district court had dismissed or granted summary judgment against all of his claims. Dempsey appealed the summary judgment decisions on his false arrest, malicious prosecution, false imprisonment, and supervisory liability claims. A three-judge panel of the Third Circuit agreed with the district court that a finding of probable cause in the criminal investigation obviated recovery on these claims. The panel agreed with Dempsey that the af-fidavit of probable cause “recklessly omitted” facts known to the reporting officer and relevant to the existence of probable cause. However, the court found, as a matter of law, that “no reasonable jury could find that [a reconstructed affidavit of probable cause which included the recklessly omitted facts] lacked probable cause.” Because the existence of probable cause precluded recovery on any of the claims appealed by Dempsey, the district court award of summary judgment was affirmed. – Thomas J. Graca

Doe v. The Ohio State Univ., 136 F.Supp.3d 854 (S.D. Ohio 2016). The plaintiff, a student instructor at The Ohio State University, sought to enjoin an investigation by university of-ficials concerning an off-campus sexual harassment incident. The sexual harassment incident was reported to the police by the plaintiff’s ex-girlfriend, a student at Capital University, alleging that she was sexually harassed by the plaintiff, who

posted pictures of her to a public website. The police took no action, but Ohio State University officials informed the plaintiff that he violated The Ohio State University’s Code of Student Conduct, which applied to any student’s activity in which a police report has been filed. Furthermore, the plaintiff was informed that a preliminary hearing was necessary to gather information to determine whether charges were necessary, and failure to attend would result in disciplinary action.

Without citing any authority, the plaintiff argued that the university lacked jurisdiction to investigate him because the complaint was between the plaintiff and a Capital Univer-sity student, who lacked a relationship with the Ohio State University. The plaintiff further argued that the university’s investigation of the incident violated the United States and Ohio Constitutions, as well as its own sexual harassment policy.

The U.S. District Court for the Southern District of Ohio denied the plaintiff’s motion for a temporary restraining order and preliminary injunction, concluding that his claims were unlikely to succeed on the merits, and issuing an injunction might cause harm to others and would not serve the public interest. The court reasoned that granting an injunction would cast doubt on the university’s power to regulate its student body. Furthermore, prohibiting the university from investigating could jeopardize federal funding in light of the Office of Civil Rights Title IX guidance, which requires the university to investigate allegations of off-campus sexual misconduct. – Joseph Nelson

Jackson v. Macalester Coll., 169 F.Supp.3d 918 (D. Minn. 2016). Jackson, a student attending Macalester College, was being investigated for violations in connection with a sexual as-sault that occurred at his off-campus apartment. Jackson moved for temporary restraining order (TRO) to restrain the college from conducting any investigation or disciplinary proceeding regarding the alleged sexual assault until the court addressed the merits of his claims. He also sought to restrain the United States Department of Education from compelling the college to proceed with a Title IX enforcement action. Both Macalester and the department of education asserted that, at this stage of the investigation, Jackson could not meet the legal standard for injunctive relief. The court, based on the importance of a showing of irreparable harm, rather than speculative harm, denied Jackson’s motion. – Joe McNabb

Powell v. Mount St. Mary Coll., 38 N.Y.S.3d 217 (N.Y.A.D. Dept. 2 2016). The appellant, Mount St. Mary College, appealed to the court seeking a reinstatement of a nursing student, Pow-ell, who was expelled by the president of Mount Saint Mary College for violation of the student conduct code. Because the petitioner had already graduated from the college, the appeal was dismissed as academic. – Elizabeth Lugg

Discrimination

Edwards v. University of Dayton, 142 F.Supp.3d 605 (S.D. Ohio 2016). A campus police officer issued a citation to a student, Edwards, who brought a Section 1983 action against the university and officer, claiming that the officer was


All rights reserved

immature and needed diversity classes. The court dismissed the complaint, finding that the allegations were insufficient to state a claim pursuant to Section 1983 and the plaintiff failed to allege any specific claim against the university. The court reasoned that the plaintiff claimed nothing more than rude and harassing behavior by a state actor which did not create a constitutional violation sufficient to support a Section 1983 claim. – Joseph Nelson

Ingram v. Cooper, 163 F. Supp. 3d 1133 (N.D. Okla. 2016). The plaintiff, Ingram, was a student at Northeastern State University completing requirements for a counseling license. When the defendant, Cooper, refused to allow her to revise an academic paper and subsequently refused to sign the applicable paperwork for the counseling license, Ingram com-plained to Landry, Cooper’s supervisor. Ingram subsequently brought suit under Section 1983, alleging 1) retaliation for her protected expressive activity of complaining to Landry, and 2) discrimination on the basis of her race, gender, and age. The defendants, Cooper and Landry, sought to dismiss, asserting that the underlying allegations occurred outside of the applicable statute of limitations and that they were entitled to qualified immunity. With respect to the limitations period, the federal district court determined that some allegations related to the retaliation claim occurred within the statute of limitations and denied the defendants’ motion to dismiss with respect to those facts. The court also held that the defendants were not entitled to qualified immunity with respect to retaliation claim because Ingram satisfactorily alleged violation of a clearly established constitutional right. Finally, the court held that the defendants were entitled to qualified immunity with respect to Ingram’s discrimination claims because Ingram failed to allege their discriminatory intent, which was necessary for showing that the right was clearly established at the time of the defendants’ actions. – Thomas J. Graca

Dismissal

Chenari v. George Washington Univ., 172 F. Supp. 3d 38 (D.D.C. 2016). Chenari was a medical student at George Washington University School of Medicine. He brought this action in response to his dismissal from the medical school for continuing to work on the Step 1 Surgery Shelf Exam for at least ninety seconds after time had been called, and disre-garding the instructions of the exam proctor to stop working. While Chenari conceded these central facts, he nonetheless alleged that the university breached its contract with him for dismissing him for “academic dishonesty” while, he contends, his actions were not dishonest. The federal district court was not persuaded by Chenari’s argument. Because the court concluded that the dismissal was genuinely academic, its “review of the institution’s decision [was] extremely deferential.” Because the court found that the University had a rational academic basis for dismissing Chenari, summary judgment was granted to the university on Chenari’s contract claims. Chenari also alleged that the university discriminated against him on the

basis of his attention deficit hyperactivity disorder, and sought recovery under the Americans with Disabilities Act and the Rehabilitation Act. The court granted summary judgment to the university on these claims as well because Chenari failed to show 1) that the university was aware of his disability, 2) that he had requested an accommodation, or 3) that the university had retaliated against him for exercising his rights under the ADA or the Rehabilitation Act. – Thomas J. Graca

Wiesenberg v University of Hawaii, 378 P.3d 926 (Hawaii 2016). A master’s student at the University of Hawaii was placed on probation and ultimately dismissed from the pro-gram. He filed suit pro se, seeking damages based on not being granted a degree. The suit was dismissed without prejudice for failing to plead a proper party. After obtaining counsel, the plaintiff filed a second amended complaint and sought an order compelling the university to readmit him for the purpose of conferring a degree. The court denied this motion on the ground that the statute of limitations had run. The university then moved for judgment on the pleadings, which was granted, and entered judgment. The plaintiff filed a notice of appeal, which the university moved to dismiss, claiming the appeal was untimely. Opposing the motion, the plaintiff argued that the amended judgment substantially and materially amended the original judgment and that the thirty-day appeal period started running from the filing of the amended final judgment. On appeal to the Hawaii Supreme Court, the court found that the final amended judgment did materially and substantially alter the original final judgment, and thus the thirty-day ap-peal period did start running as of the date of filing the final amended judgment. Therefore, it concluded, the plaintiff’s appeal was timely. – Elizabeth Lugg

Family Educational Rights and Privacy Act

Krakauer v. State, 381 P.3d 524 (Mont. 2016). Jon Krakauer, a journalist, filed a request with the University of Montana to access the disciplinary records of a student athlete who was the defendant in a highly publicized criminal pro-ceeding. The university refused to acknowledge whether any such records existed, citing state and federal student privacy laws. Krakauer sued the university in state court for release of the records, citing the right to examine public records under the Montana constitution. When the trial court ordered the university to release the records with students’ identifying information redacted, the university appealed. On appeal, the Supreme Court of Montana held that: 1) Krakauer had standing to request the records under Montana’s constitution; 2) The federal Family Educational Rights and Privacy Act (FERPA) and analogous state law permit universities to release student records if the records show an institution’s final determination that a student violated its rules, or pursuant to a court order or subpoena; and 3) The trial court, when weighing Krakauer’s right to examine records against students’ right to privacy, erred by failing to consider the futility of redacting identify-ing information in response to a request for the records of an



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identified student. The state supreme court remanded the case with instructions to review the requested records in camera, apply the appropriate balancing test, decide what records, if any, may be released, and determine what redactions may be appropriate. A dissent by Justice McKinnon posited that remand was unnecessary because Krakauer could not prevail under the appropriate balancing test. – Stephen Worthington


Jane Doe I v. Valencia Coll. Bd. of Trustees, 838 F.3d 1207 (11th Cir. 2016). The appellants were students in the sonography program at Valencia College. They claimed that instructors in the sonography program attempted to coerce them into serving as subjects for their classmates’ perfor-mance of transvaginal ultrasound procedures, that they were threatened with adverse academic action when they refused to participate, and that they were retaliated against for speaking out against the peer-to-peer transvaginal ultrasound proce-dures. They brought action under Section 1983 claiming that their Fourth Amendment right to be free from unreasonable searches and their First Amendment right to protected speech had been violated. The district court dismissed for failure to state a claim. On appeal, a three-judge panel of the Eleventh Circuit vacated the district court’s dismissal. With respect to the students’ First Amendment claim, the appeals court found that the district court had erroneously classified the students’ expressive activities as “school-sponsored,” and therefore applied the incorrect law and came to the wrong conclusion about the students’ complaint. Similarly, the court held that the district court had erroneously concluded that a transvaginal ultrasound was not a search because it was not done for inves-tigative or administrative purposes, and therefore also came to the wrong conclusion on the students’ Fourth Amendment claim. The matter was remanded back to the district court. – Thomas J. Graca

Sexual Harassment

Doe v. Alger, 317 F.R.D. 37 (W.D. Va. 2016). Doe, a male freshman at James Madison University, began a relationship with a female freshman during his first week on campus. Later in the semester, the female student filed a charge that their first sexual encounter was not consensual. A hearing board found him not responsible for the charge, but an appeals board reversed the decision and suspended him through the spring 2020 semester. Seeking immediate reinstatement, Doe brought a Section 1983 claim against multiple university administra-tors. Doe claimed that the disciplinary process deprived him of his liberty interest in his good name and of his property interest in his continued enrollment at the University without due process of law, in violation of the Fourteenth Amendment. Doe also moved for leave to proceed under a pseudonym and for a protective order prohibiting the use of his real name or the real names of the female student and the other students involved in the disciplinary process. The court granted Doe’s

motion to proceed under a pseudonym, and entered a protective order prohibiting the use of his real name and the real names of the other students involved in the disciplinary proceedings during this case. – Brett Geier

A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016). / 6 Atlanta Dev. Auth. v. Clark Atlanta U. Inc., 784 S.E.2d 353

(Ga. 2016). / 21 Atlanta Indep. Sch. Sys. v. Wardlow, 784 S.E.2d 799 (Ga.

Ct. App. 2016). / 3 B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152 (2d Cir.

2016). / 8 B.D. v. Dist. of Columbia, 817 F.3d 792 (D.C. Cir. 2016). /

10 Balyberdina v. National Institute for Psychotherapies, 30

N.Y.S.3d 80 (N.Y.A.D. 1 Dept. 2016). / 25Barillaro v. City of New York, 38 N.Y.S.3d 697 (N.Y. Sup.

Ct. 2016). / 17 Bd. of Educ. of the Westerville City Sch. v. Franklin Cty.

Bd. of Revision, 57 N.E.3d 1126 (Ohio 2016). / 17 Benjamin v. Sparks, 173 F. Supp. 3d 272 (E.D.N.C. 2016).

/ 18 Boatright v. Copeland, 783 S.E.2d 695 (Ga. Ct. App. 2016).

/ 18 Boone v. New York City Dep’t of Educ., 38 N.Y.S.3d 711

(N.Y. Sup. Ct. 2016). / 3 Boyd v. Hawaii State Ethics Comm’n, 378 P.3d 934 (Haw.

2016). / 1 Briggs v. Dist. of Columbia, 172 F. Supp. 3d 15 (D.D.C.

2016). / 12 Briggs v. Thousand Islands Cent. Sch. Dist., 169 F. Supp. 3d

320 (N.D.N.Y. 2016). / 7 Brinsdon v. McAllen Indep. Sch. Dist., 832 F.3d 519 (5th

Cir. 2016). / 4 Burton v. Board of Regents of the Univ. of Wisconsin, 171

F.Supp.3d 830 (W.D. Wis. 2016). / 25 Calhoun Comty. Coll. v. Hudson, 200 So. 3d 1175 (Ala.

2016). / 23 Calhoun Intermediate Sch. Dist. v. Calhoun Intermediate

Educ. Ass’n, 885 N.W.2d 310 (Mich. Ct. App. 2016). / 15 Chadwick v. Duxbury Pub. Schs., 59 N.E.3d 1143 (Mass.

2016). / 19 Chenari v. George Washington Univ., 172 F. Supp. 3d 38

(D.D.C. 2016). / 27Collins v. Northwestern Univ., 164 F. Supp.3d 1071 (N.D.

Ill. 2016). / 24 Columbus City Schs. Bd. of Educ. v. Franklin Cnty. Bd. of

Revision, 58 N.E.3d 1126 (Ohio 2016). / 16 D.M. v. Seattle Sch. Dist., 170 F. Supp. 3d 1328 (W.D.

Wash. 2016). / 13 Davis v. Hot Springs Sch. Dist., 833 F.3d. 959, (8th Cir.

2016). / 15 Daza v. Los Angeles Cmty. Coll. Dist., 247 Cal.App. 4th

260 (CA Ct.App. 8 Div. 2016). / 23

Table of Cases


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Dearman v. Stone Cnty. Sch. Dist., 832 F.3d 577 (5th Cir. 2016). / 21

Dempsey v. Bucknell Univ., 834 F.3d 457 (3d Cir. 2016). / 26

Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55 (2d Cir. 2016). / 8

Doe v. Alger, 317 F.R.D. 37 (W.D. Va. 2016). / 28 Doe v. Southeast Delco Sch. Dist., 140 F. Supp. 3d 396

(E.D. Pa. 2015). / 5 Doe v. Spartanburg Cnty. Sch. Dist. Three, 314 F.R.D. 174

(D.S.C. 2016). / 13 Doe v. The Ohio State Univ., 136 F.Supp.3d 854 (S.D. Ohio

2016). / 26 Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d 179 (D.

Conn. 2016). / 5 Dukes-Walton v. Atlanta Indep. Sch. Sys., 784 S.E.2d 37

(Ga. Ct. App. 2016). / 20 E.H. v. New York City Dep’t of Educ., 164 F. Supp. 3d 539

(S.D.N.Y. 2016). / 10 Edwards v. University of Dayton, 142 F.Supp.3d 605 (S.D.

Ohio 2016). / 26 Ely v. Dearborn Hts. Sch. Dist. No. 7, (E.D. Mich. 2015),

aff’d, 2016 U.S. App. LEXIS 13533 (6th Cir. July 22, 2016). / 4

Emery v. Talladega Coll., 169 F. Supp. 3d 1271 (N.D. Ala. 2016). / 22

Figueroa v. N.Y. State Division of Human Rights, 38 N.Y.S.3d 857 (N.Y.A.D. 1 Dept., 2016). / 19

Fiorentini v. William Penn Sch. Dist., 150 F. Supp. 3d 559 (E.D. Penn. 2016), aff’d, 2016 U.S. App. LEXIS 22462 (6th Cir. Dec. 16, 2016). / 19

Flood v. Dist. of Columbia, 172 F. Supp. 3d 197 (D.D.C. 2016). / 12

Fratello v. Roman Catholic Archdiocese of New York, 175 F. Supp. 3d 152 (S.D.N.Y. 2016). / 18

Freedom from Religion Found. Inc. v. New Kensington Sch. Dist., 832 F.3d 469 (3d Cir. 2016). / 14

Gillis v. Principia Corp., 832 F.3d 865 (8th Cir. 2016). / 25 Gohl v. Livonia Pub. Schs, 134 F. Supp. 3d 1066 (E.D.

Mich. 2015). / 13 Gordon v. Bd. of Trustees of the Univ. of Arkansas, 168 F.

Supp. 3d 1148 (E.D. Ark. 2016). / 21 Hairr v. First Jud. Dist. Ct., 368 P.3d 1198 (Nev. 2016). / 1 Harnish v. Widener Univ. Sch. of Law, 833 F.3d 298 (3d Cir.

2016). / 22Harrington v. City of Attleboro, 172 F. Supp. 3d 337 (D.

Mass. 2016). / 7 Holt v. Deer-Mt. Judea Sch. Dist., 135 F. Supp. 3d 898

(W.D. Ark. 2015). / 20 Idom v. Natchez-Adams Sch. Dist., 178 F. Supp. 3d 426

(S.D. Miss. 2016). / 19 Ingram v. Cooper, 163 F. Supp. 3d 1133 (N.D. Okla. 2016).

/ 27 J.M. v. New York City Dept. of Educ., 171 F. Supp. 3d 326

(S.D.N.Y. 2016). / 13 J.P. v. Smith, 134 A.3d 977 (N.J. Super. Ct. 2016). / 17

Jackson v. Gallaudet Univ., 169 F.Supp.3d 1 (D.D.C. 2016). / 24

Jackson v. Macalester Coll., 169 F.Supp.3d 918 (D. Minn. 2016). / 26

Jane Doe I v. Valencia Coll. Bd. of Trustees, 838 F.3d 1207 (11th Cir. 2016). / 28

Jankowski v. Lellock, 649 Fed. App’x 184 (3d Cir. 2016). / 6

Jason O. v. Manhattan Sch. Dist., 173 F. Supp. 3d 744 (E.D. Ill. 2016). / 11

Jefferson Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 378 P.3d 835 (Colo. Ct. App. 2016). / 16

Julian v. Bay Cnty. Dist. Sch. Bd., 189 So. 3d 310 (Fla. Dist. Ct. App. 2016). / 14

K.S. v. Detroit Pub. Sch., 130 F. Supp. 3d. 1073 (E.D. Mich. 2015). / 7

Krakauer v. State, 381 P.3d 524 (Mont. 2016). / 27L.R. v. Sch. Dist. of Philadelphia, 836 F.3d 235 (3d Cir.

2016). / L.S. v. Lansing Sch. Dist. #158, 169 F. Supp. 3d 761 (N.D.

Ill. 2015). / 12 Lackey v. Iberia R-V Sch. Dist., 487 S.W.3d 57 (Mo. Ct.

App. 2016). / 17 Legarde-Bober v. Oklahoma State Univ., 378 P.3d 562

(Okla. 2016). / 24 Lockhart v. Willingboro High Sch., 170 F. Supp. 3d 722 (D.

N.J. 2015). / 8 M.T. v. New York City Dep’t of Educ., 165 F. Supp. 3d 106

(S.D.N.Y. 2016). / 10 Matter of R.D., 486 S.W.3d 130 (Tex. App. 2016). / 6 Mays v. Hamburg Sch. Dist., 834 F.3d 910 (8th Cir. 2016).

/ 15 McGee v. Balfour Beatty Constr., LLC, 247 Cal. App. 4th

235, 202 Cal. Rptr. 3d 251 (2016), reh’g denied (May 23, 2016). / 16

Meade v. Moraine Valley Comty. Coll., 168 F.Supp.3d 1094 (N.D. Ill., 2016). / 24

Med Exp. v. Univ. of Colorado Denver, 49 N.E.3d 729 (Ohio App. 9 Dist. 2016). / 22

Moore v. Grady Mem’l Hosp. Corp., 834 F.3d 1168 (11th Cir. 2016). / 25

Moore v. Tangipahoa Parish Sch. Bd., 836 F.3d. 503 (5th Cir. 2016). / 15

Moradnejad v. Dist. of Columbia, 177 F.Supp.3d 260 (D.D.C. 2016). / 12

New York v. Utica City Sch. Dist., 177 F. Supp. 3d 739 (N.D. NY 2016). / 15

News 12 Co. v. Hempstead Pub. Sch. Bd. of Educ., 31 N.Y.S.3d 788 (N.Y. Sup. Ct. 2016). / 14

O’Meara v. State Dep’t of Mgmt. Servs., 189 So. 3d 308 (Fla. Dist. Ct. App. 2016). / 18

Oak View Props., LLC. v. Franklin Cty Bd. of Revision, 58 N.E.3d 1133 (Ohio 2016). / 17

Olmsted v. St. Paul Pub. Sch., 830 F.3d 824 (8th Cir. 2016). / 20

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vide for special education students in order to meet statutory requirements of providing a FAPE under IDEA? The Court granted certiorari on September 29, 2016. Oral arguments were held on January 11, 2017.

Certiorari Granted

No. 16-273. Gloucester Cnty. Sch. Bd. v. G.G., 822 F.3d 709 (4th Cir. 2016). G.G. is a transgender male high school student in the Gloucester County public schools. Although born a female, G.G. has been diagnosed with gender dysphoria, has legally changed his name to one common to males, and has undergone hormone therapy. After receiving permission from school administrators to use the boys’ restrooms, the school board passed a policy “banning G.G. from the boys’ restroom.” G.G. argued that being required to use the girls’ bathroom would “cause severe psychological distress” and would be “incompatible with his treatment for gender dysphoria.” G.G. filed suit, arguing that the policy discriminated against him in violation of Title IX and the Equal Protection Clause of the Fourteenth Amendment. The U.S. District Court for the East-ern District of Virginia dismissed G.G.’s claim and denied the student’s request for an injunction. The Fourth Circuit reversed the trial court’s dismissal of G.G.’s Title IX claim because “the district court did not accord appropriate deference to the relevant Department of Education guidelines.” Additionally, the Fourth Circuit vacated the lower court’s denial of G.G.’s request for an injunction, stating that the lower court “used the wrong evidentiary standard in assessing [the student’s] motion for a preliminary injunction.” On August 3, 2016, the Supreme Court granted petitioners’ stay to prevent G.G. from using the boys’ restroom as the case progresses. On October 28, 2016, the Supreme Court granted certiorari for two of the questions posed by petitioners.

No. 15-577. Trinity Lutheran Church of Columbia v. Pau-ley, 788 F.3d 779 (8th Cir. 2015). The Trinity Lutheran Church operates a licensed preschool and daycare program called the Learning Center. In 2012, the Missouri Department of Natural Resources accepted grants from local entities to receive new playground surface material, in the form of shredded tires, from the state. The Learning Center applied for the grant and included in the application a statement that the daycare and preschool was run by the Trinity Lutheran Church. The grant application was denied by the state department, despite being ranked the fifth best (the grant was able to award 14 of the 30 applications). Sara Pauley, the director of the Department of Natural Resources, wrote the following in the rejection letter to the Learning Center, “After further review of applicable constitutional limitations, the department is unable to provide this financial assistance directly to the church.” The Trinity Lutheran Church filed suit in federal district court, claiming that the decision to not award this grant was a violation of the Equal Protection Clause of the Fourteenth Amendment, a violation of the Free Exercise Clause of the First Amendment, and a violation of state law. The Church sought injunctive

Summary of Court Action Reported From November 17, 2016 through January 17, 2017

Provided by Spencer Weiler and Christine Kiracofe

Cases Awaiting Decision after Oral Argument

No. 15-497. Fry v. Napoleon Cmty. Schs., 788 F.3d 622 (6th Cir. 2015). In Fry, parents of a child with a disability filed suit against the Napoleon Community School District after their request to permit their daughter’s service dog to accom-pany her to school was rejected. As part of the child’s IEP, she had benefit of the services of a human aide and thus the IEP team determined the service dog was unnecessary at school. The parents argued that the school’s refusal to allow the dog to attend school with their daughter negatively impacted the bond the child had with the service animal in violation of her rights. The Court of Appeals for the Sixth Circuit dismissed the Fry’s Section 504 and ADA claims, affirming the lower court’s determination that “‘the specific injuries the [plaintiffs] allege are essentially educational’ and, therefore subject to administrative exhaustion under an entirely separate statute, the Individuals with Disabilities Act (IDEA).” Petitioners in Fry ask the Supreme Court to answer the following question: “whether the [Handicapped Children’s Protection Act] HCPA commands exhaustion in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act, that seeks damages – a remedy that is not available under the IDEA.” On June 28, 2016 the Supreme Court granted certiorari. Oral arguments were held on October 31, 2016.

No. 15-827. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 798 F.3d 1329 (10th Cir. 2015). Endrew F. is a child with autism who has received special education services in the Douglas County School District since he was in preschool. At the end of Endrew’s fourth-grade year, his parents, believing that he “was not making any meaningful progress,” rejected the district’s proposed fifth-grade IEP and withdrew him from the public schools. They enrolled him at a private school, the Firefly Autism House. Endrew’s parents sought reimbursement for tuition and related expenses from the Douglas County School District, arguing that the district had failed to provide their son with a free appropriate public education (FAPE) as required under IDEA. The school district denied the reimbursement request, and the parents subsequently filed suit. The district court found for the school district and the Tenth Circuit af-firmed. Finding there was “sufficient evidence” that Endrew had received “some educational benefit” from the special education services he received from the district, the lower courts held that the district had met their statutory requirement to provide the student with a FAPE under IDEA. Endrew’s parents appeal to the Supreme Court to answer the following question: What is the level of educational benefit that a school district must pro-

U.S. Supreme Court Docket


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and declaratory relief. Pauley filed a motion to dismiss the claim due to the fact that the plaintiff failed to state a claim. The district court granted the defendant’s and this ruling was affirmed on appeal. On January 15, 2016 the Supreme Court granted certiorari.

Cases Recently Filed

No. 16-672. Paso Robles Unif. Sch. Dist. v. Timothy O., 822 F.3d 1105 (9th Cir. 2016). Luke O. is a child who has been diagnosed as having autism. The court notes that “he displayed symptoms of a developmental disorder early in life” and received early intervention services (speech, language, and occupational therapy) from a regional service center near his home. When Luke approached the age of 3 (when IDEA would attach) his parents requested that the Paso Robles school district conduct an evaluation for IDEA eligibility. The school district did not assess Luke for autism, instead misidentifying his disability as a “speech or language impairment.” The school district re-fused to reconsider testing Luke for autism and the matter was turned over to an Administrative Law Judge (ALJ), who found for the school district. Luke O.’s parents (Timothy and Amy) appealed the ALJ’s decision to the U.S. District Court for the Central District of California. The District Court affirmed the holding of the ALJ, finding for the school district. On appeal, the Ninth Circuit Court of Appeals reversed the lower court’s decision, determining that the school district had violated Luke’s procedural rights under IDEA when it “fail[ed] to assess. . . for autism” and resulted in a denial of FAPE.

No. 16-533. Riley v. Elkhart Cmty. Schs., 829 F.3d 886 (7th Cir. 2016). Riley, an African American female who had taught for Elkhart Community Schools since 1980, filed this lawsuit claiming the school district discriminated against her based on her race, her age, and her gender. Riley argued that the school district failed to promote her to different open administrative positions during her career as a teacher. Riley earned her principal license in 2005 and from 2005 to 2013 she applied for 12 different administrative positions and was never hired. In each situation, Riley was passed over for a younger educator and often times for a white male. The school district filed for summary judgment and the district court, based on the fact that Riley failed to produce evidence that established she was not hired for administrative positions due to her race, gender, and/or age, granted the summary judgment. On appeal, the district court’s ruling was affirmed for the same reason, namely, the lack of evidence provided by Riley.

No. 15-557. Douglas Cnty. Sch. Dist. v. Taxpayers for Public Educ., 351 P.3d 461 (Colo. 2015) (Note, this case is being combined with No. 15-558 Colo. State Bd. of Educ. v. Taxpayers for Pub. Educ. and No. 15-556 Doyle v. Taxpayers for Pub. Educ. All three cases will be heard as one). In March 2011, the newly elected Douglas County School Board, which then consisted of a conservative majority, authorized the Choice Scholarship Program (CSP). The aim of the CSP was

to provide students a voucher to attend private schools. The funding mechanism for the CSP required the school district to create a new charter school where students would enroll in order to become eligible for the voucher. The new charter school enrollment numbers were reported to the state and, as a result, the school district received funding for each student from the state. Three-fourths of the funding from the state was passed on to the student in the form of the voucher, and the school district retained the remaining 25% for administrative costs. In 2012, the voucher was for $4575, with the school district retaining $1525. Plaintiffs filed this lawsuit claiming that the CSP was unconstitutional. The appellate court ruled that the plaintiffs lacked standing, but that the CSP arrangement created a partnership between the public school district and, potentially, private religious schools. As a result of this partnership, the CSP would be in violation of the state constitution if a permissible claim were filed. This ruling was appealed to the state supreme court, which concluded the plaintiffs did have standing and ruled that the CSP was unconstitutional for a number of reasons, including the lack of safeguards surrounding the program. The court provided the example of a private school awarding a student a scholarship and then reducing that scholarship by the exact amount of the voucher. Ironically, the state supreme court’s ruling reversed both decisions by the appellate court. In addition to ruling that the CSP was unconstitutional, the court concluded that the fact that the voucher money could go to parochial schools did not violate the First Amendment of the U.S. Constitution. As a result, both rulings by the appellate court were reversed and remanded.

Certiorari Denied

No. 16-738. Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403 (5th Cir. 2016). Rogers is an African-American master electrician who twice applied for employment with the Pearland Independent School District. The first time Rogers applied, his application was denied because he failed to disclose prior criminal convictions, as required by the school district. Rogers met with the school district’s human resources director, during which Rogers became “angry . . . raised his voice, and was ultimately asked to leave.” The open position was filled by another applicant, Rodney Taylor, who was also African American. After Taylor vacated the position and it was once again posted by the school, Rogers reapplied. When he was notified that he was not being considered for the position, he filed suit. Rogers filed suit in the U.S. District Court for the Southern District of Texas, alleging that the school district had engaged in racial discrimination in violation of Title VII. The District court found for the school district and, on appeal, the Fifth Circuit Court of Appeals affirmed. The Court denied certiorari on January 17, 2017.

No. 16-563. Stallings v. Detroit Pub. Schs., 658 Fed. App’x 221 (6th Cir. 2016). Stallings was hired by Detroit Public Schools (DPS) in 2002 to teach early childhood edu-cation. Before the start of the 2012-13 school year, Stallings



32

and that the decision to withhold his transcripts represented a conspiracy by the defendants to cause him harm. He filed suit claiming the actions by people from Rockland caused him personal, professional, and financial injuries, and claimed he was entitled to $7 million in damages. The defendants filed a motion for summary judgment. The court concluded that the plaintiff’s complaint did not allege any specific legal claim, and granted the motion for summary judgment by the defendants. On December 5, 2016, the Supreme Court denied certiorari.

No. 16-5957. Johnson v. Beach Park Sch. Dist., 638 Fed. App’x 501 (7th Cir. 2016). Theresa Johnson applied to work as a substitute teacher in the Beach Park School District, north of Chicago, during the 2011-12 school year. She had previously applied to the district as a substitute teacher during the 2007-08 school year, but rejected the district’s offer of employment at that time based on an administrative request to provide an official copy of transcripts from the university where she received her bachelor’s degree. Johnson believed that this request (and the absence of the request for her transcripts for her other degrees, including her teaching license and masters degree program) was racially motivated. While Johnson was technically hired by the district as a substitute teacher that year, she never took any assignments that were offered to her during that school year. Johnson alleges that the district failed to hire her as a substitute teacher during the 2011-12 year partly in retaliation for her rejection of the district’s offer of employ-ment four years earlier. She further alleged that the district’s decision not to hire her was discriminatory in nature, arguing that the district “passed her over” for “younger, white, and non-disabled applicants.” The district court granted summary judgment for the Beach Park School District and the Seventh Circuit affirmed. Certiorari was denied on November 28, 2016.

No 15-1479. Kubiak v. City of Chicago, 810 F.3d 476 (7th Cir. 2016). After serving the Chicago Police Department for 14 years as a patrol officer, Laura Kubiak was promoted to what she characterized as a “prestigious desk job” in the “Office of News Affairs.” While working in her new position, Kubiak alleged that a colleague verbally assaulted her; Kubiak then reported the assault to police administrators. Shortly thereafter, Officer Kubiak was reassigned from the Office of News Affairs back to her original position as a patrol officer. Kubiak alleges that the reassignment was in retaliation for her complaint about the verbal assault, in violation of her First Amendment rights. The U.S. District Court for the Northern District of Illinois dismissed petitioner’s claims and the Sev-enth Circuit affirmed. On June 6, 2016, Kubiak petitioned the Court for certiorari to answer the following questions: “(1) Does the First Amendment protect police officers who, outside of ordinary job duties, report misconduct where such a report may otherwise fall under general reporting obligations applicable to the entire workforce? (2) Is police misconduct a matter of public concern, when the report of misconduct may be characterized as serving the employee’s interest as well as that of the public?” Petitioners’ request for certiorari was denied on November 28, 2016.

was reassigned to an elementary school and required to teach fifth grade. Stallings described the change as “unbearable,” but she was qualified to teach up to eighth grade. Weeks into teaching fifth grade, Stallings broke up a fight and aggravated a preexisting condition with her knee. Stallings took medical leave through the middle of December and provided DPS with a note from her doctor stating that Stallings was to not stand for more than a minute at a time, have a sit down job, and not work in a classroom. Stallings said she could teach if she was provided a paraprofessional to help her. She returned to the classroom for roughly three weeks in January and then was reassigned an administrative position in the front office, her duties were mostly clerical. Stallings remained in that position the rest of the 2012-2013 school year. Just as the school year ended Stallings had knee surgery and returned to DPS for the 2013-2014 school year requiring similar accommodations. DPS denied Stallings request for medical leave and required her to return to the classroom. However, DPS officials made sure to adhere to all of the requests from her doctor. Stallings interpreted the hardline position of DPS as an ultimatum and opted for retirement. Plaintiff sued DPS for failing to accom-modate her according to Americans with Disabilities Act and Michigan state law regarding the rights of people with dis-abilities. Defendants moved for summary judgment due to the fact that Stallings was not a qualified individual under ADA. The motion for summary judgment was granted by the district court and, on appeal, upheld by the court of appeals. In both rulings, the courts determined Stallings failed to establish her genuine issue of material fact that she was qualified to the rights under ADA. The Court denied certiorari on January 9, 2017.

No. 16-6240. Durham v. SUNY Rockland Cmty. College, 2016 U.S. Dist. LEXIS 3713 (2d Cir. 2016). Durham was a student at Rockland Community College (Rockland) in the fall of 2005. At that time, he had an altercation with another student that he suspected was carrying a firearm. As a result of this altercation, Durham was required to meet with the Dean of Students to discuss his role in the incident. In an effort to convince the Dean that he was a good person, Durham, who described himself as a recording artist, shared with the Dean a CD recording entitled “Hangman Cock Block.” The Dean found the content of the CD offensive and had security remove Durham from her office. As a result of the investigation around the altercation, Durham was offered community service as a consequence for his role in the incident. Declining the com-munity service, he was suspended from Rockland for two semesters, and he never reenrolled. In 2013, Durham attempted to obtain a copy of his academic transcript from Rockland, but his request was denied, due to a hold that was placed on his records, and the transcripts were never sent to him. Durham claims that he was subjected to a wrongful suspension in 2006,


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Pediford-Aziz v. City of New York, 170 F. Supp. 3d 480 (S.D.N.Y. 2016). / 3

Platt v. Dist. of Columbia, 168 F. Supp. 3d 253 (D.D.C. 2016). / 11

Powell v. Mount St. Mary Coll., 38 N.Y.S.3d 217 (N.Y.A.D. Dept. 2 2016). / 26

Pullen v. Caddo Parish Sch. Bd., 830 F.3d 205 (5th Cir. 2016). / 3

Richardson v. Huber Heights City Schs., 651 Fed. App’x 362 (6th Cir. 2016). / 5

Rodgers v. Gary Cmty. Sch. Corp., 167 F. Supp. 3d 940 (N.D. Ind. 2016). / 3

S.B. v. New York City Dep’t of Educ., 174 F. Supp. 3d 798 (S.D.N.Y. 2016). / 11

S.D. v. Haddon Heights Bd. of Educ., 833 F.3d 389 (3d Cir. 2016). / 9

S.K. v. North Allegheny Sch. Dist., 168 F. Supp. 3d 786 (W.D. Pa. 2016). / 6

Saponara v. Lakeland Cent. Sch. Dist., 29 N.Y.S.3d 491 (N.Y. App. Div. 2016). / 18

Sherrod v. Bd. of St. Lucie Cnty., 635 Fed. App’x 667 (11th Cir. 2015). / 20

Simon v. Northwestern Univ., 175 F. Supp. 3d 973 (N.D. Ill. 2016). / 22

Slane v. City of Hilliard, 59 N.E.3d 545 (Ohio Ct. App. 2016). / 17

Smith v. Cheynne Mtn. Sch. Dist. 12, 652 Fed. App’x 697 (10th Cir. 2016). / 9

Smith v. Iowa State Univ. of Sci. & Tech., 885 N.W.2d 620 (Iowa 2016). / 22

State ex rel. Strothers v. Keenon, 59 N.E.3d 556 (Ohio Ct. App. 2016). / 16

State ex rel. Walgate v. Kasich, 59 N.E.3d 1240 (Ohio 2016). / 16

Unger v. Rosenblum, 369 P.3d 1129 (Or. 2016). / 14 W.R. v. State, 651 Fed. App’x 514 (6th Cir.2016). / 9 Wiesenberg v University of Hawaii, 378 P.3d 926 (Hawaii

2016). / 27 William Marsh Rice Univ. and Gary Spears v. Rasheed Re-

faey, 495 S.W.3d 531 (Tex.App. Dist. 14 2016). / 24 Williams v. City of New York, 38 N.Y.S.3d 528 (N.Y. App.

Div. 2016). / 20

Supreme Court

No. 15-497. Fry v. Napoleon Cmty. Schs., 788 F.3d 622 (6th Cir. 2015).

No. 15-557. Douglas Cnty. Sch. Dist. v. Taxpayers for Public Educ., 351 P.3d 461 (Colo. 2015) (Note, this case is being combined with No. 15-558 Colo. State Bd. of Educ. v. Taxpayers for Pub. Educ. and No. 15-556 Doyle v. Taxpayers for Pub. Educ.

No. 15-577. Trinity Lutheran Church of Columbia v. Pauley, 788 F.3d 779 (8th Cir. 2015).

No. 15-827. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 798 F.3d 1329 (10th Cir. 2015).

No 15-1479. Kubiak v. City of Chicago, 810 F.3d 476 (7th Cir. 2016).

No. 16-273. Gloucester Cnty. Sch. Bd. v. G.G., 822 F.3d 709 (4th Cir. 2016).

No. 16-533. Riley v. Elkhart Cmty. Schs., 829 F.3d 886 (7th Cir. 2016).

No. 16-672. Paso Robles Unif. Sch. Dist. v. Timothy O., 822 F.3d 1105 (9th Cir. 2016).

Table of Cases, continued



34

Coyne v. Walker: 2011 Wisconsin Act 21, as Applied to the Superintendent of Public Instruction, Violated Wisconsin Constitution

By Adam Ross Nelson, University of Wisconsin School of Law J.D. 2008, University of Wisconsin School of Education Ph.D. Anticipated 2017, Madison, Wisconsin

ELA Case CommentaryJanuary & February 2017In-depth explanation and commentary on a case of interest

Introduction

In Coyne v. Walker,1 the Wisconsin State Supreme Court affirmed decisions by the Wisconsin Court of Appeals and the Dane County Circuit Court which declared 2011 Wisconsin Act 21 (Act 21), as applied to the Superintendent of Public Instruction (SPI), unconstitutional.

Act 21 extensively revised Wisconsin’s Administrative Procedures Act (WAPA).2 In Coyne, the court considered only whether Act 21 was constitutional as applied to the SPI. Un-like many other heads of Wisconsin’s administrative agencies, Wisconsin’s SPI is an office created by constitution. Wiscon-sin’s Constitution, Section I of Article X, establishes the SPI as an elected state officer whose purpose is to supervise public instruction.

The Coyne court affirmed an earlier unanimous decision that established the Legislature may not constrain the SPI by assigning to another officer power that is equal to or greater than the SPI’s.3 This commentary will provide an overview of the pertinent facts, procedural history and the plurality’s rationales.

Pertinent Facts

The co-plaintiff-respondents were teachers, parents, and labor organization leaders in Wisconsin public schools. Defendant-appellants-petitioners were Governor Scott Walker and Secretary of The Department of Administration (DOA) Scott Neitz4 in their official capacities. Superintendent of Public Instruction, Anthony Evers, was defendant-respondent also in an official capacity.

Prior to Act 21 the WAPA required agencies to begin rule making by submitting “scope statements” 5 to the Legislative Reference Bureau (LRB) for publication in the Wisconsin Administrative Register. Following Act 21, the WAPA required agencies to obtain written approval from the Governor before submission to the LRB.

In later stages of rule making, both before and after Act 21, the WAPA also requires agencies to submit proposed rules to the Legislature for approval. However Act 21 added that approval by the Governor and the DOA was required before an agency would be allowed to submit proposed rules to the Legislature. By requiring approval from the Governor and the DOA prior to submitting proposed rules to the Legislature, Act 21 created a opportunity for the Governor or the DOA to halt rule making.

Procedural History

Following the passage of Act 21, Coyne and other plaintiffs sought a declaratory judgment that Act 21 was unconstitutional as applied to the SPI. The trial court, Dane County’s Circuit Court, denied a motion to dismiss for lack of standing. The SPI answered by agreeing with Coyne’s assertion that requiring the SPI to obtain approval from other government officials in the process of drafting and promulgating administrative rules violated Wisconsin Constitution Article X, Section 1.

Subsequently, the Governor answered and moved for summary judgment. Coyne also moved for summary judg-ment. The trial court denied the Governor and DOA’s motion for summary judgment and granted Coyne’s motion, stating, “Under the analysis set forth in Thompson, Act 21 as applied to this case violates the Wisconsin Constitution.”6 On appeal, the panel unanimously affirmed the trial court’s decision.7 The Governor and the DOA then appealed to the Wisconsin State Supreme Court.

The Court’s Analyses

In three separate opinions, four of the court’s justices affirmed the lower decisions, though with different legal reasoning. Chief Justice Roggensack and Justices Zeigler and Bradley dissented. To contrast the concurring opinions, this commentary first discusses the third concurrence by Justice Prosser, then the second concurrence by Justice Abrahamson (joined by Justice Walsh-Bradley), and finally, the court’s opinion by Justice Gableman.

First, Justice Prosser acknowledged and described Article X, Section I’s ambiguity. Prosser articulates a view that the SPI might appear to be the constitutional officer with status “more significant” than the lieutenant governor.8 This view is based on a reading of the constitution, which notes that Article X created the SPI and that there is no mention of the SPI in other articles, which created multiple other officers including the governor and lieutenant governor (Article V), or the sheriffs, coroners, registers of deeds, and district attorneys (Article VI). In other words, by establishing the SPI “in the same manner as it established the senate and assembly, the governor, and the judiciary”9 directly elected by the people, the constitution sought to establish the SPI as an independent and autonomous executive officer. Prosser also, however, highlighted constitu-


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tional text, which afforded the Legislature responsibility for determining the SPI’s “powers, duties, and compensation.”10 On balance, Prosser concluded that the SPI, independently of the Legislature, “must possess some inherent authority to proceed to fulfill its responsibilities.”11

Second, Prosser outlined that in his view, Act 21 creates a mechanism by which the Governor (or the DOA) may prevent agencies from issuing administrative rules that are required by statute. Accordingly, by affording the Governor (or the DOA) an opportunity to prevent agencies form issuing administrative rules, Act 21 unconstitutionally enables the Governor (or the DOA) an opportunity to defy the Legislature in a manner that Prosser describes as greater than the gubernatorial legislative veto power.12

Justice Abrahamson’s opinion disagreed with Gableman and Prosser’s treatment of Thompson, a previous case on which all three opinions relied. Thompson involved 1995 Wisconsin Act 27 (Act 27) that also modified the SPI’s authority. According to Abrahamson, the Thompson court established a clear rule: “the Legislature may not give equal or superior authority to any ‘other officer.’”13 That rationale alone, according to Abra-hamson, is sufficient to affirm the lower decisions in Coyne.

Abrahamson disagreed with the reasoning stated in Gable-man’s opinion that the Legislature has authority to give, not give, or take away the SPI’s power.14 She explained that this portion of Gableman’s reasoning is not at issue in Coyne and not necessary to reach a decision. Ultimately, Abrahamson ar-gued that under Thompson, Gableman was incorrect to explain “if the Legislature does not believe the [SPI] should engage in rulemaking, it is free to change the statutory scheme.”15 Instead, reiterating that legislative control is not at issue in Coyne, Abrahamson rhetorically sided with Prosser that the SPI, “as a constitutional officer, must possess some inherent authority to proceed to fulfill its responsibilities.”16

Gableman’s lead opinion, in a linear fashion, identified and addressed three issues: first, whether administrative rule making is a supervisory power of the SPI; second, whether the Legislature may constitutionally vest that power in any other officers it chooses; and third, if Act 21 vests supervision of public instruction in the Governor or DOA by granting them authority to prevent the SPI from promulgating rules.

Regarding the first issue, Gableman reasoned that rule making is a supervisory power because it is the only mechanism by which the SPI may supervise public instruction. Gable-man specifically reasoned that administrative rule making is the SPI’s only mechanism by which the SPI may supervise public instruction. A point at which Gableman disagrees with the concurring opinions is that Gableman asserts rule making is the SPI’s only option, because the Legislature has provided no other option. Regarding the second issue, Gableman also reasoned that “self-evident[ly],” the Governor and the DOA were not created by the Legislature “as officers of supervision of public instruction.”17 Gableman’s construction of Article X, Section I permits the Legislature to grant authority to supervise public instruction to other “officers of supervision of public instruction.”18 Since the Legislature did not create the Governor

or the DOA as “officers of supervision of public instruction,”19 in turn the “Legislature may not delegate to the Governor or the [DOA] power to oversee, inspect, or superintend public instruction.”20 Lastly, Gableman concluded that Act 21 did grant the Governor and the DOA authority to prevent the SPI from promulgating rules.

Conclusion

The four concurring justices agreed on several main points, primarily that Act 21 provided the Governor and the DOA unconstitutional authority to supervise public instruction. The justices also agreed that Act 21 granted to the Governor and the DOA supervisory authority that is greater than or equal to the Wisconsin SPI’s authority. Act 21 gave the governor or the DOA authority to prevent Wisconsin’s SPI, for any reason or no reason, from drafting and promulgating administrative rules. With reference to Thompson, all agreed such a grant of authority was unconstitutional.

Endnotes1 Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520.2 See Ronald Sklansky, Changing the Rules on Rulemaking, 84 Wis. LaW.

10 (2011), http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=84&Issue=8&ArticleID=2092.

3 Thompson v. Craney, 199 Wis. 2d 674, 546 N.W.2d 123 (1996).4 In March of 2015, Scott A. Neitzel became Wisconsin Department of

Administration Secretary. Following this change in personnel, Neitzel’s name replaced that of former secretary Huebsch’s.

5 Wis. stat. § 227.135 (2009); Wis. stat. § 227.135 (2015).6 Coyne v. Walker, 2012 WL 12897815 at *6 (Wis. Cir.).7 Coyne v. Walker, 2015 WI App 21, 361 Wis.2d 225, 862 N.W.2d 606.8 Coyne v. Walker, 2016 WI 38, ¶ 155, 368 Wis. 2d 444, 879 N.W.2d 520. 9 Id. at ¶ 140.10 Id. at ¶ 143 (quoting Wis. Const. art. X, § 1).11 Id. at ¶ 152.12 Id. at ¶ 142 (internal quotations omitted).13 Thompson v. Craney, 199 Wis.2d 674, 699, 546 N.W.2d 123 (1996).14 Coyne, 2016 WI 38, ¶ 70. 15 Id.16 Id. at ¶ 109.17 Id. at ¶ 63.18 Id.19 Id.20 Id. at ¶ 64 (internal quotations omitted).

Education Law Association2121 Euclid Ave. LL212Cleveland, OH 44115

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PAIDCleveland, OhioPermit No. 891

Steve Permuth (Editor-in-Chief ); Susan Silver, Ralph Mawdsley, Charles Russo (Editors.); Dustin Robinson (Research Associate)Monograph No. 95 in the ELA Series (January 2017)Paperback, ISBN 978-1-56534-175-3Member Price: $29.24 Nonmembers: $44.99

An informative and dynamic series of articles, essays, and discussion questions from nearly 30 authors, concerning religion in public primary/secondary schools and universities. The text con-siders the subject’s background, the development of legal precedent, as well as contemporary issues of educational administration, in two sections:

History, Philosophy, and Trends; and Educational Practices.

In a newly written third section, the authors look ahead and express their personal views about potential changes to issues of religion and law in public schools under the Trump administration.

Charles Russo (Editor), Elizabeth Shaver (Associate Editor)Hardcover, 336 pages (December 2016)ISBN 978-1-56534-176-0Member Price: $48.74 Nonmembers: $74.99

The Yearbook of Education Law, published annu-ally, 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. Each volume covers all phases of education law and includes a detailed index and table of cases.

Available as a standing order. Contact the office about Yearbooks from previous years.

Available from the ELA Bookstore February 2017

Order online at www.educationlaw.org

Religion and Law in Public Schools: History, Philosophy, Trends; Educational Practices; The Trump Administration – Looking Ahead

The Yearbook of Education Law 2016 Introduction

Chapters1 - Employees: Ralph Mawdsley and James Mawdsley2 - School Governance: Lynn Daggett and Patrick Pauken3 - Students: Joe Dryden and Cliff Cohen4 - Bargaining: Jeffrey Greenley5 - Students with Disabilities: Allan Osborne., Susan Bon6 - Torts: Elizabeth Shaver and Robert Hachiya7 - Sports: Mark Paige8 - Higher Education: Kevin Brady and Luke Stedrak9 - Students (Higher Education): Joy Blanchard, Elizabeth Lugg10 - Federal & State Legislation: David Dagley and Amy Dagley Case Index - Table of Cases, Cases by JurisdictionSubject Index

Chapter Authors1 - Jennifer Sughrue2 - Justin Butterfield3 - Edd Doerr, Albert Menendez4 - Rev. Barry Lynn5 - David Goldenberg, Stacy Maddern6 - David Schimmel7 - William Thro8 - Wayne Haglund9 - John Dayton10 - Steve Permuth, Dustin Robinson, Susan Silver11 - Allan Osborne, Charles Russo12 - Ralph Mawdsley13 - Martha McCarthy14 - Les Stellman, Tiffany Puckett15 - Christine Kiracofe16 - Nathan Roberts, Kenneth Lane17 - Phillip Buckley, Allan Osborne18 - Brett Geier19 - Trasima Richard, Richard Fossey, Robert Slater, Sharon Hoffman20 - Steve Permuth, Patrick Pauken, Dustin Robinson

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