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Secular advocacy group threatens Georgia district with lawsuit after it allows distribution of Bibles in schools during school hours

WXIA 11 reports that the Freedom from Religion Foundation (FFRF) has sent a letter to Bartow County School System’s (BCSS) superintendent protesting BCSS’s decision to allow Gideons to distribute Bibles to students, at Cloverleaf Elementary School, on school property during school hours, and threatening a lawsuit if the school district doesn’t cease allowing the practice. FFRF says it initially wrote to BCSS in October 2012, and was told that “any future practice will be reviewed carefully” and that “No principal, teacher or any other school official will encourage a student in Bartow County School System to accept a Gideon Bible in the future.”

FFRF’s latest letter was sent on December 12, 2014 to BCSS Superintendent Dr. John F. Harper. The letter cites a number of federal and state cases holding that distribution of Bibles on school property violates the First Amendment’s Establishment Clause. The letter also states that:

“The District may not allow Gideons, or any other religious groups, to enter school property to distribute religious literature. By doing so, the District is impermissibly endorsing the religious messages contained in the Bible.”

Finally, the letter closes with the following demands:

  • It asks the School Superintendent to inform all school staff that Bible distributions in public schools are illegal and to provide FFRF with a copy of that communication.
  • It suggests that teachers and the principal at Cloverleaf Elementary School should be reprimanded for allowing the distribution of Bibles during the school day.
  • It asks for a list of the specific steps the school board is taking to end “repeated violation.”
  • It warns that the next time it happens, the FFRF will not send a letter, it will file a lawsuit.

Source: WXIA, 12/12/14, By Julie Wolfe and Jeremy Campbell

[Editor's Note: In May 2014, Legal Clips summarized an Associated Press (AP) article in the Argus Leader that reported that the American Civil Liberties Union of South Dakota (ACLU-SD) was demanding that the Miller School District (MSD) stop its practice of allowing Bibles to be distributed to fifth-graders. MSD’s board had recently voted to allow Gideons International to distribute pocket-sized New Testaments to fifth-graders. ACLU-SD sent a letter to the school district asserting that a number of courts have prohibited the distribution of Bibles in public schools under a variety of circumstances.

The National School Boards Association's "Materials Distribution in Schools Cases Chart" is a compilation of federal court decisions regarding in-school distribution of religious materials and other materials from non-school entities, including Bibles, promotional materials for religious programs, anti-abortion literature, and Boy Scout information. ]


New York state issues regulation eliminating barriers to enrolling unaccompanied minors

According to Education Week, the New York State Board of Regents has adopted a regulation to ensure that students are able to enroll in the state’s public schools regardless of their immigration status. This new policy prohibits schools from asking about the immigration status of students.

A state department of education and attorney general office investigation begun in October 2014, found evidence that some districts refused to enroll undocumented youths and unaccompanied minors if they were unable to produce documents demonstrating guardianship or residency in the state.  “The Board of Regents has enacted these regulations to protect the right of each and every child to a free public education, no matter where they come from or what they look like,” said Merryl Tisch, chancellor of the Board of Regents.

The regulation also requires that districts comply with Plyler v. Doe, the U.S. Supreme Court decision that guarantees equal protection for undocumented children and indicates that the immigration status of a student is irrelevant to that student’s right to an elementary and secondary public education.

Some New York school districts have seen a large influx of unaccompanied minors in the wake of  a surge of undocumented youth from El Salvador, Guatemala and Honduras, coming over the U.S.-Mexico border, that peaked earlier this summer. State Attorney General Eric Schneiderman said the order will eliminate barriers faced by unaccompanied minors across the state.

“Schoolhouse doors must be open to every student in our increasingly diverse state, regardless of their immigration status—and there is simply no excuse for denying children that basic, constitutionally protected right,” Schneiderman said.

Source: Education Week, 12/16/14, By Corey Mitchell

[Editor's Note: The New York State Education Department's press release announcing the regulation states

The New York State Board of Regents today adopted a revised version of New York State Education Commissioner’s Regulation 100.2(y). The emergency regulation seeks to address barriers faced by unaccompanied minors, undocumented youth and others, while making uniform enrollment determinations made by school districts statewide. The emergency regulation helps ensure equal educational opportunity for all students seeking to enroll in New York State schools regardless of immigration status. The New York State Education Department (“SED”) proposed the revised regulation to the Board this week following the initiation of a joint compliance review, with the Attorney General’s Office, of school district enrollment policies and procedures.

In September 2014, Legal Clips published a Sua Sponte item the U.S. Department of Education (ED) released as  “FACT SHEET II:  Additional Questions & Answers Enrolling New Immigrant Students.”  This fact sheet includes information about general enrollment issues for new immigrant students, federal funds available to help educate immigrant students, and where school districts can get additional information and technical assistance on enrollment procedures for immigrant students.] 


Sua Sponte: ED issues updated Ebola guidance

In a letter to Chief State School Officers, U.S. Secretary of Education Arne Duncan announced that the U.S. Department of Education has issued updated guidance for schools and districts about Ebola. Although the letter provides links to information and resources advising on the proper way to respond to Ebola, the Secretary also discusses the seasonal flu and the resources available from The Centers for Disease Control and Prevention (CDC) on how to contain and manage it.

Duncan adds: “Complete information about the flu and how to contain and manage it is given at : http://www.flu.gov/www.flu.gov http://www.cdc.gov/flu/. The Readiness Emergency Management for Schools (REMS) Technical Assistance (TA) Center also has useful resources and information for addressing infectious diseases as part of a comprehensive emergency operations plan (EOP), including coping with a widespread outbreak at http://rems.ed.gov/KeepSchoolsSafeFromDiseases.aspx.” 


  • Wash hands often with soap and water or alcohol-based hand sanitizer;
  • Avoid touching eyes, nose, or mouth;
  • Avoid close contact with those who are already sick;
  • Get plenty of sleep;
  • Eat healthy food and drink plenty of fluids;
  • Cover your nose and mouth when coughing or sneezing with a tissue or the crook of your arm;
  • Stay home if ill for at least 24 hours after fever is gone.

Secretary Duncan also suggests that “[d]istricts and schools may want to review their EOPs [emergency operations plan] with public health authorities, as well as plan for continuity of teaching and learning during a school dismissal, in preparation for the height of the flu season or other infectious disease outbreak.

The CDC K-12 schools guidance on Ebola, “Addressing Ebola Virus Infection Concerns in K-12 Schools: Interim Guidance for District and School Administrators,” addresses concerns about the risk of Ebola in K-12 schools, and recommends actions that schools can take if needed to prevent transmission of Ebola in K-12 schools. It states that the purpose of the guidance is:

[T]o provide K-12 districts and school administrators (educators) with information on public health actions pertaining to Ebola virus disease, help address their concerns about the risk of Ebola in K-12 schools in the United States, provide educators with information about situations that do not pose an actual risk of Ebola, enable them to counter stigma associated with perceived risk of Ebola, and recommend actions that they may take, in close consultation with public health authorities, to reduce the potential risk of any Ebola virus transmission in schools. In particular, this guidance provides an overview of the potential roles and responsibilities of public health authorities and educators, describes risk levels and monitoring as determined by public health authorities, and explains implications for schools. This guidance will be updated as needed if new knowledge becomes available.



Parents’ suit claims Tennessee district failed to provide accommodations for their child’s peanut allergy as required by ADA

According to The Tennessean, the parents of an elementary school student, identified as A.G. who has a peanut allergy, has filed suit in federal court against Cheatham County Board of Education (CCBOE) and the principal of Ashland City Elementary School. The suit claims that the principal failed to provide appropriate accommodations for the student’s allergy in violation of  the Americans with Disabilities Act. It also alleges that the parents’ First Amendment rights have been violated.

The suit alleges that: “Plaintiffs tried to work with Cheatham County to balance the need for a ‘peanut- free’ environment for their child, on the one hand, versus the risk of ‘isolating’ her from all of her classmates and requiring her to sit by herself. The balance to be struck, they explained was a peanut-free table where many children, not just A.G., could feel comfortable.”

According to the suit, the parents provided school officials with a letter from their child’s doctor explaining her severe allergy to peanuts and the need for special considerations to prevent her from having a reaction while at school. The student’s mother also claims that she ( the mother) was banned from the school’s campus, during Halloween, by the principal after she was found distributing a flyer about food allergies at the school.

In addition, the parents contend that someone at the school reported the family to DCS for suspected child abuse following their complaints to school officials. The lawsuit indicates that DCS investigated and determined that the claim was unfounded.

Responding to the suit, CCBOE Director of Communications Jeff Bennett said, “Cheatham County school district received notice of the complaint filed on December 1 and have referred it our attorney.” He added, “The district’s top priority is the safety of its students and we work to comply with all federal, state and local laws.”

The lawsuit asks the court to  to order the district to provide a safe school environment free of retaliation. It also seeking monetary damages.

Source:The Tennessean, 12/2/14, By Tom Wilemon

[Editor's Note: In November 2013, Legal Clips summarized an Associated Press article in the  Huffington Post reporting that the federal Centers for Disease Control and Prevention (CDC) has issued voluntary guidelines on how to protect students with food allergies in schools. The guidelines were required by a 2011 federal law. The guidelines encourage schools to take such steps as restricting nuts, shellfish or other foods that can cause allergic reactions, and to make sure emergency allergy medicine, such as EpiPens, are available.]



Second Circuit panel rules that district court should have given greater deference to SRO’s determination that parents’ unilateral placement of their child in private school was not appropriate under IDEA

Hardison v. Board of Educ. of Oneonta City Sch. Dist., Nos. 13-1594/13-1843 (2d Cir. Dec. 3, 2014)

Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that a federal district court erred in failing to give greater deference to a state review officer’s (SRO) determination that parents were not entitled to reimbursement under the Individuals with Disabilities Education Act (IDEA) for unilaterally placing their child, who is emotionally disabled, in a private school because the parents failed to produce evidence sufficient to establish that the placement was appropriate. Because the panel deferred to the SRO’s finding that the record lacked sufficient detail to establish that the private school chosen by the parents was an appropriate placement for the student, it denied reimbursement to them.

Facts/Issues: A.N.H., who exhibited some emotional issues through elementary and middle school in Oneonata School District (OSD), progressed successfully in a regular education program. However, when she reached high school her academic performance declined. A.N.H. began exhibiting problematic behaviors that led to a tentative diagnosis of bipolar disorder. Her guidance counselor and her mother requested that the school engage in an evaluation of A.N.H. designed to gather information on why she was having difficulty at school. The school conducted an evaluation and identified numerous reasons for A.N.H.’s difficulties in school. The evaluation did not result in the school placing A.N.H. on an individualized education plan (IEP).

After it became clear that A.N.H. would fail nearly all of her classes that year, her parents removed her from school, sending her to live with her grandmother until the end of June 2007. A.N.H. failed all but two of her 2006–2007 classes and received 25 discipline reports for unexcused absences from class, tardiness, and disruptive class behavior that year. She returned to OSD in  the fall of 2007, but continued to have a number of mental health issues that resulted in her being hospitalized, being sent to a rehabilitation facility, and then being placed in placed in Bugbee, which is a specialized program operated by OSD.

A.N.H.’s parents requested and received a Committee on Special Education (CSE) assessment of A.N.H., which included an evaluation by the school psychologist. The school psychologist’s report noted that Mrs. Hardison (A.N.H’s mother) “believes that [A.N.H.] should be able to pass and do fairly well but she lacks the desire” and that, “[u]ntil [A.N.H.] is willing to do her work . . . outside tutoring is the best option.” The Hardisons seemed to think that if A.N.H. was returned to Oneonta High School full-time, her prior patterns would resume. The psychologist opined that, despite A.N.H. receiving average scores on the intelligence and performance tests, “outside mental health factors appear[ed] to be causing a significant disruption in [A.N.H.’s] life within school” and that “[t]he CSE will need to determine to what extent [A.N.H.’s] mental health issues are impacting her educationally.”

OSD convened a CSE meeting in January 2008, which A.N.H. and her parents attended. Much of the meeting was spent discussing what supports could be put into place for A.N.H., but no official individualized educational plan (IEP) was created for her. A.N.H.’s return to the high school was brief and she was returned to the Bugbee where mental health issues continued. Her parents subsequently had A.N.H. hospitalized.

The parents did not make another referral to the CSE, nor did OSD convene the CSE on its own. Instead, A.N.H.’s mother sent an email to A.N.H.’s guidance counselor, informing him that they were working on enrolling A.N.H. at the Family Foundation School (“Family Foundation”). OSD answered questions for the parents and provided a copy of A.N.H.’s transcript to Family Foundation. The parents did not inform the District during this exchange that they would be seeking tuition reimbursement. A.N.H. initially enrolled in Family Foundation for only a few days, returning to Bugbee because she tested positive for pregnancy and had been asked to leave.

Shortly thereafter, A.N.H. was hospitalized again and diagnosed with “Major Depressive Disorder.” The paperwork from this stay, which indicated that she had “[i]nadequate supports,” but did not state that A.N.H. should be referred to the CSE, was not provided to OSD. In July 2008, A.N.H. miscarried and remained in care for approximately two weeks. Afterwards, she was re-enrolled in Family Foundation. Appellants again did not inform OSD that they would be seeking tuition reimbursement.

Family Foundation is not a New York State-approved special education school. Family Foundation’s program is designed for students in need of therapeutic intervention. The overall academic structure is designed to provide support, including evening teacher availability and tutoring by more advanced students. A.N.H. did not receive regular services from a licensed psychologist while at Family Foundation, although she did meet regularly with her family counselor as part of her “family group.” During the period covered by this litigation, the Hardisons paid the tuition at Family Foundation. No bills for A.N.H.’s schooling were sent directly to the OSD.

In August 2008, A.N.H.’s father informed the District that A.N.H was enrolled in Family Foundation and requested “some tuition assistance.”  OSD refused, indicating that it could not provide reimbursement because A.N.H. was not classified as disabled and Family Foundation was not on the list of approved special education schools. In response, the parents indicated that they would seek legal counsel. OSD did not reconvene the CSE at that time. A.N.H. remained enrolled at Family Foundation.

In October 2008, on the advice of legal services staff, the parents made a referral to the Hancock Central School District (HCSD), which is located in the same area as Family Foundation, but they did not provide a copy of the referral letter to the District. This referral was made pursuant to New York Education Law § 3602-c, which calls for the public provision of special education services to students enrolled in non-public schools. In January 2009, in response to the parents’ request, HCSD’s psychologist evaluated A.N.H.

HCSD’s CSE—which was composed of the A.N.H.’s parents, a parent advocate employed by the parents’ legal counsel, two HCSD employees, and three Family Foundation staff members, determined that A.N.H. was classifiable as a student with an “Emotional Disturbance.” HCSD created, but never implemented, an Individualized Education Service Plan (“IESP”), which is functionally identical to an IEP, for A.N.H. Although the IESP did not specifically call for placement in a residential facility, it acknowledged that A.N.H. had been placed at Family Foundation and several of the identified “goals” in the HCSD IEP seemed to be directed toward services provided there. None of these services was provided to A.N.H. by HCSD.

In February 2009, the parents filed a due process complaint against OSD, arguing, among other things, that A.N.H. had been denied a FAPE. The parents requested that A.N.H. be classified as disabled, that she be provided with appropriate services, and that they be reimbursed for the tuition cost of Family Foundation. As part of a resolution session, A.N.H. was again referred to the OSD’s CSE.

In April 2009, OSD held a CSE meeting and classified A.N.H. as having an “[e]motional disturbance” based on her history of depression and self-destructive behavior. According to the OSD’s Director of Special Education, it was appropriate to change A.N.H.’s classification because OSD now had information it lacked when it originally declined to classify her in 2008. They developed an IEP. The IEP recommended that A.N.H. attend a day treatment program. The CSE did not assign A.N.H. to a day treatment program at that time.

The parents were provided with a list of approved residential programs, including facilities for girls A.N.H.’s age who suffered from emotional disturbances, to review prior to the next CSE meeting. OSD did not provide a specific referral to any of these facilities, which, according to the parents, limited their ability to learn about the offered programs. In June 2009, the District’s CSE reconvened but again put off assigning A.N.H. a specific placement so that the parents could investigate additional options.

The parents informed OSD that the placements they had investigated between meetings were inappropriate for A.N.H., rejecting one because it did not treat eating disorders despite the fact that A.N.H. had not been diagnosed with an eating disorder. OSD continued to reject placing A.N.H. at Family Foundation, however, on the grounds that Family Foundation did not have structured special education programs, that not all of its teachers were certified teachers, and that it was not on the list of schools approved by the New York State Commissioner of Education.

A second IEP was created at the August 5 meeting. It repeated the same list of needs identified in the April 2009 IEP, but added that “[a]s the result of a thorough assessment of [A.N.H.’s] strengths and needs in relation to the identified education disability, the CSE has determined that removal from general education is necessary at the identified levels in order to provide the specialized instruction necessary to demonstrate academic achievement.” The IEP indicated that a residential placement was appropriate, but it did not specify a school. It permitted placement at any of the “[a]pproved in-State private schools.” Neither during this meeting, nor in the week that followed, did the parents inform OSD that they planned to reject the residential placements offered or that they would seek reimbursement for A.N.H.’s continued placement at Family Foundation.

After a due process hearing , the impartial hearing officer’s (IHO) decision found that OSD  had denied A.N.H. a FAPE for the 2008–2009 and 2009–2010 academic years. The IHO ordered OSD to pay A.N.H.’s tuition through January 31, 2010, and to find a suitable placement for A.N.H. for the balance of the 2009–2010 school year. Specifically, the IHO found that, in 2008–2009 the District failed to provide A.N.H. a FAPE because the school psychologist failed to evaluate thoroughly A.N.H.’s mental health issues; the CSE failed to develop information relative to A.N.H.’s educational history; and, despite receiving information from the parents that A.N.H was “collapsing into depression,” OSD did not reconvene the CSE. The IHO concluded that A.N.H.’s placement at Family Foundation was appropriate, and, despite the parents’ failure to notify the district of the placement and intention to seek reimbursement prior to enrolling A.N.H. at Family Foundation, there was no equitable impediment to tuition reimbursement.

Regarding the 2009–2010 school year, the IHO determined that A.N.H. was again denied a FAPE because the IEP developed for her neither placed her in a school nor provided referrals to any of the private residential programs on the Commissioner’s approved placement list. The IHO continued to find placement at Family Foundation appropriate and—again excusing the parents’ failure to provide express notice to the District—held that the equities did not fully bar reimbursement because of the extent of collaboration between the parents and OSD when trying to find an acceptable placement for A.N.H.

OSD appealed the decision to a state review officer (SRO). The SRO overturned the bulk of the IHO’s decision, finding that the district had not deprived A.N.H. of a FAPE through May 1, 2009; that the parents had failed to demonstrate that Family Foundation was an appropriate placement; and that equitable considerations did not support the parents’ reimbursement claim. In reaching its decision, the SRO reviewed the compiled record before the IHO and additional briefing from the parents and the District. Regarding the 2008–2009 school year, the SRO concluded that as of the January 31, 2008 CSE meeting, A.N.H. failed to meet one or more of the criteria for a student with an emotional disturbance and thus was not denied a FAPE on account of her not being classified at that time.

The SRO also determined, however, that as of May 2009, the CSE had an obligation to recommend a placement for A.N.H. and failed to do so, thus denying A.N.H. a FAPE for the balance of the 2008–2009 school year. Although the SRO found that the District denied A.N.H. a FAPE, the SRO also determined that the record lacked sufficient information regarding how Family Foundation met A.N.H.’s unique educational needs. The SRO determined that the parents had not demonstrated that A.N.H. was appropriately placed at Family Foundation. The SRO further held that equitable considerations did not support the parents’ reimbursement claim. With respect to the 2009–2010 school year, the SRO similarly ruled that OSD denied A.N.H. a FAPE but that the parents had not met their burden of proving that Family Foundation met A.N.H.’s needs and that equitable considerations did not weigh in favor of reimbursement.

The parents challenged the SRO’s decision in federal district court. The district court did not review any additional information that had not been submitted to the IHO or SRO. That is, the record before the district court was the same record that was before the SRO. It reversed, in part, the SRO’s decision, and ordered OSD to reimburse the parents for May 1, 2009 to May 31, 2009, and for the 2009–2010 school year.

Unlike the SRO, the district court found that Family Foundation was an appropriate placement that provided A.N.H. with ample therapeutic support, which contributed to her improved academic performance. The court departed from the SRO’s analysis. It further concluded that the equities favored reimbursement for the period of May 1, 2009 to May 31, 2009, and for the 2009–2010 school year. OSD  appealed from the district court’s decision, and the parents cross-appealed from the district court’s agreement with the SRO that the District provided A.N.H. a FAPE from January 2008 to April 2009.

Ruling/Rationale: The Second Circuit panel, rejecting the parents’ cross-appeal, reversed the district court’s decision as to its determination that partial summary judgment was appropriate for the parents. The lynchpin of the panel’s ruling was on its deference to the SRO’s determination that the parents did not meet their obligation to demonstrate the appropriateness of A.N.H.’s placement, and, therefore, it concluded that the parents could not recover under IDEA for any portion of the time A.N.H. was placed at Family Foundation.

The panel began its analysis by  indicating that “[w]hen an IHO and SRO reach conflicting conclusions, we defer to the final decision of the state authorities, that is, the SRO’s decision.” It emphasized that the district court should have afforded more deference to the SRO’s conclusions because its review was based entirely on the same evidence as that before the SRO. Citing Second Circuit precedent it stated that “[i]t is not for the federal court to choose between the views of conflicting experts on such questions.”

Based on those principles, the panel held that “the SRO’s determination in this case is sufficiently reasoned and supported by the record to merit deference” in regard to the finding that record contained insufficient information to conclude that Family Foundation’s programs were appropriate for A.N.H.’s specific educational needs. It stated:

The determination made by the SRO here, that more particular information was required to reach a particular decision, is a function of the specialized knowledge and expertise possessed in greater degree by state educational policymakers than by the courts. … It is precisely because we recognize that state educational authorities possess greater expertise in drawing conclusions from educational proceedings that it is clearly established in this Circuit that “deference to ‘administrative proceedings is particularly warranted where, as here, the district court’s decision was based solely on the administrative record.

The panel concluded, based on its independent review of the administrative record, “that the SRO’s conclusion was sufficiently supported by the record to merit deference.” It found the SRO’s determination that “the hearing record lacks sufficient information regarding how Family Foundation provided educational instruction specially designed to meet the unique needs of the student,” was reasoned and supported by the record, and entitled to deference. As a result, the panel determined that the district court should not have disturbed the SRO’s conclusion. It said, “Because we defer to the SRO’s finding that the record lacked sufficient detail to establish that Family Foundation was an appropriate placement for A.N.H., and that finding requires a denial of reimbursement to the [parents], we do not reach the additional issues raised by the parties on appeal.”

Hardison v. Board of Educ. of Oneonta City Sch. Dist., Nos. 13-1594/13-1843 (2d Cir. Dec. 3, 2014)

[Editor's Note: In October 2014, Legal Clips summarized a 2-1 decision by a Ninth Circuit panel in M.M. v. Lafayette Sch. Dist. holding that a California school district’s failure to comply with the IDEA's procedural requirement to provide parents with educational testing data deprived the parents of the opportunity to meaningfully  participate in the creation of their son’s individualized education program (IEP) thereby denying  the student a free appropriate public education (FAPE) under the IDEA. 

The dissenting opinion took issue with the majority’s view of the RTI model utilized by LSD to measure achievement levels of all students in the school. The judge emphasized that RTI was not a mechanism used by LSD to identify students in need of special education. Despite that fact, the judge pointed out that the majority held that LSD’s failure to provide these test results to C.M.’s parents resulted in a violation of the IDEA. She contended that the ALJ had issued a detailed decision, which should have been given deference, in which  a clear distinction was made “between use of the RTI as a means to assign students to their respective classrooms and use of the RTI as an assessment tool to determine eligibility for special education services.” Judge Rawlinson said¸ “Rather than deferring to the ALJ’s considered resolution of this issue, the majority embarks upon a de novo review of the record to reach a conclusion contrary to that of the ALJ and at odds with the record.”]






COSA Webinar December 17, 2014 – Federal Update: An Inside Look at Congressional and Agency Activity Affecting Public Schools

Don’t miss this opportunity to get up-to-date information on the status of key education policy initiatives in Washington. NSBA legal and legislative staff members provide insight and information on such big-ticket items as school lunches and E-Rate funding, as well as recent guidance and directives from the Department of Education and other agencies. Register now for this webinar.


  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Sonja Trainor, Director, Council of School Attorneys
  • Presenter: Leza Conliffe, Senior Staff Attorney, NSBA Office of General Counsel and NSBA Legislative Advocacy team.

Fourth Circuit panel hears oral argument in case over expansion of Davis deliberate indifference standard

On December 10, 2014, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit heard oral argument in Does v. Board of Education of Prince George’s County, No. 13-2537. The appeal addresses the issue of whether the deliberate indifference standard established for student-on-student sexual harassment claims, in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), should be relaxed to incorporate common law negligence principles .

Council of School Attorneys (COSA) member Leslie R. Stellman of PK Law in Townson, Maryland attended the argument and has provided the following synopsis of the oral argument:

Oral argument on an appeal from the District Court for the District of Maryland’s dismissal, on summary judgment, of a Title IX and negligence claim arising out of  alleged same-sex student-on-student sexual harassment was heard before Judges Harvey Wilkinson, Paul Niemeyer, and Robert King. Abbey Hairston argued the case for the The Prince George’s County Board of Education, while Laura Abelson of the Baltimore law firm Brown Goldstein argued for the Does.

Ms. Abelson began by contending that there were numerous disputed facts that should have gone to the jury, and that those facts added up to “deliberate indifference.”  She claimed that the school system failed to reasonably respond to harassment and that the district court misapplied the standard for summary judgment.

Judge Wilkinson immediately expressed concern that the Does’ “problem is with the Davis standard,” that it was “not just negligence,” and that “deliberate indifference” requires that the Board was “clearly unreasonable” in its response to alleged harassment. He accused the Does of trying to create a “triable issue of negligence,” when the standard is much higher. Ms. Abelson replied that under Davis, deliberate indifference could be demonstrated by merely showing that the school’s actions made a student more vulnerable to harassment. She contended that the school’s responses were not calculated to be effective.

Judge King observed that, with multiple grades being taught in the same room in a Montessori School, there is more going on for the teacher to be responsible for observing. Judge Wilkinson pointed out that the school contacted the parents of the alleged harasser and placed the student on behavioral probation, then gave him a week of in-school suspension, which the Does’ lawyer conceded was served in the school office.

After some discussion between the Does’ counsel and Judge Neimeyer about alleged incidents which the District Court failed to consider, a discussion ensued about the options given to allow J.D. (the plaintiff) to avoid being in the bathroom at the same time as his alleged harasser (M.O.).  Judge Wilkinson then opined: that this was not a school system that, as in Davis, “kissed the whole problem off. “  He recognized that there are a variety of student interactions every day for administrators to deal with and if they were to “jump down M.O.’s throat, his parents would sue the school.”

Judge Wilkinson referred to the events in the case as “isolated events between two people” in a classroom with constantly changing dynamics, and that “it is all a teacher can do to give instruction.”  He insisted that the standard of avoiding deliberate indifference is not necessarily making the harassment stop altogether.

When the Does’ counsel invoked the OCR’s DCL standard, Judge Wilkinson insisted that “that is not the standard. That may deal with funding between the federal Department of Education and local school systems.”  He rejected the Does’ lawyer’s contention that if the Department of Education funding is contingent on compliance with the DCL, then a jury should follow the DCL.

When Abbey Hairston commenced her argument on behalf of the Board, Judge King confirmed with her that the lawsuit did not seek injunctive relief, only monetary damages. This later led both Judges Wilkinson and King to severely criticize the Does’ lawyer (during her rebuttal argument) about suing the acting principal for money. Ms. Hairston pointed out that the school system recognized the Does’ concerns, but had to take into account the alleged harasser’s rights, the fact that none of the incidents were reported in a timely fashion, and that nonetheless the school system acted as if each incident were as reported by J.D.

When asked by Judge Wilkinson what concrete steps were taken to resolve the problems, she described the school’s code of conduct, which was invoked in an effort to stop any harassment.  Judge Wilkinson indicated that, having taught school, he knew that “its hard being a teacher.”  Judge Wilkinson agreed that the school “came down hard” on M.O., but that expelling him would have resulted in a lawsuit.

During J.D.’s rebuttal argument, Judge King stated that “you can’t expect us to second guess schools. You want damages against the school and its decision-makers, who you would make personally liable for damages for making the wrong decision. You would have the Fourth Circuit intervene whenever a decision is made where to seat a child or which room to put him in. We would be opening the door to 1,000’s of lawsuits against schools, teachers, staff, and the courts will take over the role of the school administrators. It bothers me that people have to make tough decisions, and even when they are trying, there are already enough difficulties running a school and teaching students. It would be impossible to recruit teachers if the courts were hostile to educators. Whatever you think in hindsight, the school system here tried. You don’t need a jury to determine that there was no deliberate indifference.”

Judge Wilkinson concluded the argument by saying, “we’re not in the business of second guessing teachers’ decisions in the classrooms. We will not make them personally liable.”

As they left the bench to shake hands with the attorneys (a 4th Circuit tradition), Judge Niemeyer told Ms. Hairston that she had presented an “excellent argument.”

I cannot predict the results with certainty, but I would be more than willing to bet quite a bundle on the outcome of this case. The judges were clearly unsympathetic to the plaintiffs, and were unwilling to even consider the DCL for guidance on burdens of proof in Title IX cases as against the Davis deliberate indifference standard. For these reasons, I am quite optimistic that the case will be decided favorably, and that the deliberate indifference standard will be upheld once again.

[Editor's Note: In June 2014, the National School Boards Association (NSBA) and the Maryland Association of Boards of Education (MABE) filed an amicus brief in support of the Prince George's County Board of Education. The Legal Clips Sua Sponte item announcing filing of the brief  stated:

NSBA/MABE’s brief urges the Fourth Circuit to reject the plaintiffs’ plea to expand Davis using the U.S. Department of Education‘s (ED) Office for Civil Rights (OCR) enforcement guidance and expert opinions on proper investigations or interventions.

In addition to arguing against adoption of OCR’s enforcement guidance on the ground that it fails to meet the Davis standard’s higher bar, the brief asserts that local school officials are in the best position to respond to known incidents of harassment or bullying, as demonstrated by long-standing judicial precedent deferring “to school officials’ decision-making in matters of student discipline and maintaining an orderly, safe learning environment, including peer harassment claims under federal civil rights statutes.”]


Custodial employee’s federal lawsuit claims Michigan district covered up past asbestos contamination at two schools

The Detroit Free Press reports that Theresa Ely, a custodian with Dearborn Heights Schools District No. 7 (DHSD7), has filed suit in federal court against DHSD7. The lawsuit alleges that the school district has put the health of students and staff at two schools at risk by falsifying a report and covering up past asbestos contamination. DHSD7 officials acknowledge that they made a mistake by using electric sanders, which contained asbestos, on vinyl tiles, but insisted this week there is no evidence asbestos was released into the air where it could damage human health. All parties agree that there is no current asbestos problem at either of the schools.

Ely was reprimanded by DHSD7 in 2013 and again this year after complaining about district orders to use sanding equipment to remove wax from the tiles, and for warning co-workers that their health was endangered when they did the work without protective equipment. School district officials insist that the disciplinary actions were justified because the Michigan Occupational Safety and Health Administration (MIOSHA) investigated and found no problems.

Jeff Bartold, DHSD7′s superintendent until July 2014 and who is now the interim business manager, also cited a consultant’s report that gave one of the district schools  a clean bill of health. However, MIOSHA records show that the agency fined the district $27,000 in 2013 for “serious” health and safety violations related to the work on asbestos tiles at the two schools referenced in the lawsuit. In addition, the environmental consultant cited by the district, Don Clayton of D&D Consulting, said he never inspected either school for asbestos, and that he never wrote nor had any knowledge of the report the district attributed to him.

Clayton told an OSHA investigator he suspects somebody in the district doctored an earlier report Clayton wrote on a different subject to forge a false report on the asbestos issue. Bartold told a federal OSHA investigator last year that as a “school of choice,” his district draws half its students from outside its boundaries, and he was concerned Ely’s comments would hurt recruitment.

Both Bartold and John Nicholl, DHSD7′s supervisor of plant operations, insist they don’t know why Clayton has denied authorship of the report district officials cited in refuting Ely’s claims. They also deny a cover-up.

Ely, who in a separate MIOSHA complaint alleges she was retaliated against when the district laid her off for the summer of 2013, said that about 20 workers were likely exposed but only she and one other worker, who also complained, have been tested. She said that the district hasn’t even paid for those tests. Ely said tests confirm she was exposed to asbestos, but so far she has not been diagnosed with a related disease.

Ely and her attorney Robert Fetter said the D&D Consulting report cited by Bartold and circulated by Nicholl is a sloppy cut-and-paste job built from an unrelated report. They note that the report twice references the “home,” rather than the school and also said the inspection was difficult “due to the fire damage,” when there had been no fire at the referenced school. Her suit also alleges that last year a kitchen employee at one of the referenced schools died of mesothelioma, an asbestos-related disease.

Source: Detroit Free Press, 12/1/14, By Paul Egan

[Editor's Note: Ely's legal complaint is a single count First Amendment retaliation claim based on her exercising her free speech rights to expose the asbestos cover up.

In February 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in Morey v. Somers Cent. Sch. Dist. holding that a school custodian, who complained to his supervisors about asbestos contamination on a number of occasions, failed to state a valid claim for First Amendment retaliation because his speech was made pursuant to his duties as the head custodian. The panel concluded that the fact that he never spoke publicly about his concerns, relying instead exclusively on internal channels, confirmed that he spoke pursuant to his duties.] 

Sale of millions of student records during tech company’s bankruptcy proceeding raises privacy concerns

According to Education Week, ConnectEDU Inc., a company that is seeking protection under Chapter 11 of  the federal bankruptcy law, transferred ownership of 20 million student records. The sale of ConnectEDU occurred without the company abiding strictly to its privacy policy, creating a cautionary tale for school districts, and a complex challenge for the ed-tech industry.

ConnectEDU had amassed millions of records from school districts, as well as individual students and their parents. Depending on what a district or individual specified, a record could include a student’s test scores, grade point average, learning disability, email and home addresses, phone number, and date of birth—among other information. The contracts with various education entities and a trove of individual student records were a substantial part of the company’s remaining value as it dissolved.

The “company sale” portion of ConnectEDU’s privacy policy opened with: “Information collected through our website is considered a trade secret of ours.” In that same policy, ConnectEDU had promised its users that they could delete their personally identifiable records before any sale.

The Federal Trade Commission’s Consumer Protection Bureau (FTCCPB) brought those policy provisions to the attention of the bankruptcy court. FTCCPB  asked the court to have ConnectEDU destroy all personal data; or to notify users that their personal information was about to be sold and that they could have it deleted; or to appoint a privacy ombudsman to ensure protection of the users’ privacy.

However,these requests were not honored because ConnectEDU had no employees as of the bankruptcy filing date. Instead of registrants receiving notice before the sale, it was left to the companies that bought the failed company’s assets to carry out the notifications after the records had been transferred.

“This is a significant red flag for the treatment of student information by education technology companies,” said Joel R. Reidenberg, a law professor at Fordham and Princeton universities. “Many ed-tech companies today are small startups, collecting lots of data. Many of them are not going to succeed. What’s the protection when these companies go bankrupt?” For those that do succeed, grow, and become part of an acquisition, he expressed similar concerns: “What’s the protection when they merge?”

Seattle schools had demanded that all records be deleted under its contract when ConnectEDU declared bankruptcy in the spring, but the district had to wait until Graduation Alliance ( one of the companies that bought ConnectEDU’s assets) received the data for that order to be carried out, according to a statement from the school system. The school system indicated that it had been assured that all student data were “fully secured” through the process.

“The ConnectEDU Chapter 11 story demonstrates that student data is treated as a marketable asset,” said Sue Peters, a member of the Seattle school board. “Part of the problem is that parents have their children’s information transferred around, and it’s up to the parents to actively retrieve and protect it.” Possessing data about students is central to using education technology effectively, and protecting that information is paramount, industry leaders say.

To that end, nearly 50 companies that sell products in the K-12 marketplace have signed a “Student Privacy Pledge,” which goes into effect on January 1, 2015. Among the pledge’s dozen provisions is one about acquisitions. It states that, in the case of a merger or acquisition, the company signing the pledge will “allow a successor entity to maintain the student personal information … provided the successor entity is subject to these same commitments for the previously collected student personal information.”

Source: Education Week, 12/9/14, By Michele Molnar

[Editor's Note: In February 2014, Legal Clips summarized an article in Education Week reporting that the U.S. Department of Education (ED), through its Privacy Technical Assistance Center (PTAC), has issued new guidance on the proper use, storage, and security of the massive amounts of data being generated by new, online educational resources. The guidelines are ED’s attempt to light the way through the rapidly evolving world of educational technology and student data privacy.

In order to foster better understanding and help districts implement “best practices,” the guidelines contain seven high-level recommendations for schools and districts.  The guidelines are non-binding and contain no new regulations. Instead, they encourage “self-policing” by industry and better policies and practices by school systems as first steps towards protecting the privacy of student records.]



Georgia appellate court rules parents of minor who libeled classmate by creating false Facebook account and posting defamatory statements and images to that account using a computer and Internet access provided by the parents can be held liable based on a theory of negligent supervision

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

Abstract: The Georgia Court of Appeals has ruled that the parents of a minor, who libeled a classmate by creating a false Facebook account and posting defamatory comments and images to that account, using a computer and Internet access provided by the parents, can be held liable for negligent supervision. However, the appellate court ruled that the parents could not be held liable as landowners imputed with a duty to remove the defamatory content that had been placed on the false Facebook account from their property. It, therefore, reversed in part and affirmed in part the trial court’s grant of summary judgment to the parents of the minor who libeled his classmate.

Facts/Issues: Dustin Athearn, a who was 13 years old, and his friend Melissa Snodgrass decided to have some fun at a classmate’s expense by creating a fake Facebook page for that person. Dustin used a computer provided by his parents, Sandra and Michael Athearn, and the family Internet account. He created a new Facebook account in his classmate Alexandria (Alex) Boston’s name. Dustin used an altered picture of Alex for the Facebook profile. He and Melissa added information to the unauthorized profile, which indicated, inter alia, that Alex held racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members.  Within a day or two the account was connected as “Facebook Friends” to over 70  other Facebook users.

Dustin and Melissa continued to add information to the persona’s profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs. Alex suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex’s parents, Amy and Christopher Boston, approached the school’s principal, Cathy Wentworth, for help. On May 10, 2011, Wentworth called Dustin and Melissa to her office. They admitted their involvement, and each signed a written statement.

Wentworth assigned them to in-school suspension for two days for their harassment of Alex. She called their parents. She also sent home a “Middle School Administrative Referral Form” to explain the disciplinary action. The Referral Form included the following “Description of Infraction: [Dustin] created a false Facebook page in another student’s name, pretended to be that person, and electronically distributed false, profane, and ethnically offensive information.”   Dustin’s mother, Sandra Athearn, reviewed the form, signed it and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him from seeing his friends after school for one week.

The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012. During the 11 month period that the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing.

They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. They also made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

On April 3, 2012, The Bostons filed suit in state court against Dustin and his parents. The suit claimed that Dustin had defamed Alex by creating and posting to the false Facebook account. It also alleged that Dustin’s parents had breached their duty as parents to supervise their minor child and breached their duty as landowners to remove defamatory content existing on their property. In addition, the suit alleged that Dustin’s actions constituted intentional infliction of emotional distress.

The Athearns filed a motion for summary judgment and the trial court granted their motion.The Bostons appealed the case. The Bostons’ appeal contended that questions of material fact existed regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence. In addition, they contended that questions of material fact remained regarding whether the Athearns, as landowners, breached a duty to remove defamatory content existing on their property.

Ruling/Rationale: The Georgia Court of Appeals affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of the Athearns. Addressing the question of whether the Bostons had stated a claim of negligent supervision that should have gone to a jury, the appellate court stated that the “key question is the foreseeability of the harm suffered by the plaintiff, that is, whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct.” It pointed out that the question of whether the parents failed to exercise ordinary care in supervising or controlling their child is in general one for a jury to decide “when the circumstances support an inference that the parents were on notice that, absent their intervention, injury was likely to result from the child’s conduct.”

While conceding that the Atherans may not have been able to anticipate Dustin’s misuse of the computer and Internet in the first instance to cause harm with malicious intent, the appellate court stressed that “they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.”  As a result, the court rejected the Athearns’ argument that they could not be held liable for negligently supervising Dustin’s use of the computer and Internet account. It concluded: “While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.”

The appellate court determined that given the nature of libel, that the initial tortious act could continue to be published to additional readers after the first publication, “the defamatory content persists in a public forum without public correction or retraction.”  It concluded that “a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward.” Based on the finding, the appellate court stated: “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions).” It, therefore, reversed that part of the trial court’s decision granting the Athearns summary judgment on the negligent supervision claim.

However, the appellate court upheld that portion of the trial court’s decision granting the Athearns summary judgment on the claim that they had breached their duty as landowners to remove defamatory content existing on their property. After stating, it would set “aside the novel and abstract questions the Bostons’ argument raises regarding where Internet content is ‘exhibited,’” the appellate court pointed out that the Bostons “failed to identify any evidence that, apart from exercising their parental power to control Dustin’s conduct, they had the ability to remove the defamation.” It found: “There is no evidence that the Athearns unilaterally had the ability to take down the unauthorized Facebook page by virtue of the fact that it was created on a computer in their home, because it was created using an Internet service they paid for, or otherwise.” The court held that because there was no evidence to support this theory of recovery, the trial court did not err in granting summary judgment to the Athearns.

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

[Editor's Note: As the facts clearly spell out the online student speech/expression in this case took place off-campus using a home computer. Nonetheless, the Bostons first took their complaint to school officials. In July 2010, Legal Clips summarized a New York Times article reporting that schools these days are confronted with complex questions on whether and how to deal with cyberbullying, which is an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, and even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.  

Although a number U.S. Court of Appeals Circuits have weighed in on the question of whether school officials may discipline students for off-campus online speech consistent with the First Amendment, the U.S. Supreme Court has declined to review cases from the Second, Third and Fourth Circuits] 


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