Illinois attorney general files federal suit to allow disabled students to compete in state athletic association meets

The Chicago Sun-Times reports that Illinois Attorney General Lisa Madigan has filed suit in federal court, seeking to make it possible for student-athletes with disabilities to compete in future Illinois High School Association (IHSA) state meets. The suit asks for an injunction ordering IHSA “to cease unlawful discrimination against athletes with disabilities,” and to create more opportunities for athletes with disabilities by setting state-qualifying standards for those athletes in individual sports, including swimming and track and field.

According to Madigan, the suit would not require schools to allow paraplegics to play football and would not require significant new spending beyond that to train officials. “The Great Lakes Adaptive Sports Association (GLASA) has offered over the years to work with the IHSA to put these standards and times in place,” she said. “They have worked with a lot of other states; Wisconsin and Minnesota are way ahead of us.”

The suit states that Mary Kate Callahan, a disabled student at Fenwick High School (FHS), and representatives from GLASA and FHS have asked IHSA to make accommodations for disabled athletes at state track and swimming meets, but “IHSA did not respond to these requests.” Instead, the suit says, IHSA filed a lawsuit of its own in April 2012 in state court in McLean County.

“The reason we did that is we received a letter from the Attorney General’s office [saying] they felt we were violating state and federal law,” IHSA executive director Marty Hickman said. “We said, we don’t believe we’re in violation of any law with respect to these issues. Their response, almost to the word, was, ‘We won’t talk about the law.’” “We weren’t looking to turn this into a fight. We filed for a declaratory judgment asking the court to tell us what our obligations are. We’re perplexed by this filing,” said Hickman.

In the meantime, IHSA has set up a committee to consider additional options for disabled athletes. The committee heard testimony from representatives from GLASA, parents and schools on April 30, 2012, and is to report its progress to the IHSA Board of Directors on June 11, 2012.

Source:  Chicago Sun-Times, 5/15/12, By Mike Clark and Abdon M. Pallasch

[Editor's Note: In February 2012, Legal Clips summarized an article in the Inland Valley Daily Bulletin, which reported that David Barker, a disabled student, had filed suit against the Chino Valley Unified School District alleging that he had been barred from Ayala High School's baseball program due to his disabilities. 

For a discussion on the effect of Maryland law and policy on the participation of disabled students in interscholastic athletics, see the 2008 COSA School Law Seminar article by Stephen C. Bounds, General Counsel, and John R. Woolums, Director of Government Relations, of the Maryland Association of Boards of Education titled Participation of Disabled Athletes in Mainstream Athletic Programs with Accommodations (available to COSA members only).]

Michigan enacts new law to increase number of online charter schools

According to an Associated Press (AP) report in Education Week, Governor Rick Snyder has signed into law a measure that will allow more online charter schools. The measure lifts the cap on cyber charter schools from two to 15 by 2014, and calls for capping the total number of cyber students at 2% of the state’s student population, potentially boosting the number to 30,000 students. Opponents say the number could be much higher, though state officials have said the cap would be strictly enforced.

The legislation prompted concerns and criticisms from many public school districts and Democratic lawmakers. Among their concerns was that there is not enough data on the two existing cyber schools. They also said officials should have waited until a report on the two-year pilot project is released next month. Opponents also questioned how much money could go to the operators of cyber charter schools, as opposed to money that would be spent directly on students or local schools.

Republicans argued that not allowing cyber school expansion was going against a trend of using more technology in education and society, and legislative leaders spent months dealing with concerns and making changes.

Source:  Education Week, 5/16/12, By AP

[Editor's Note: In January 2012, Legal Clips summarized a Denver Post article in the Colorado Springs Gazette, which reported that the Colorado Board of Education (CBE) had adopted new accountability and quality standards for online schools. CBE voted unanimously to revise rules that would establish new quality standards for online schools, and make them subject to the same scrutiny as the state’s other schools when they do not meet those standards. In addition, the state would more thoroughly scrutinize new applications for online schools.]

Oregon district prevails in suit seeking to hold it liable for peer bullying

The Oregonian reports that Beaverton School District (BSD) has won a lawsuit brought by the parent of a middle school student who was subjected to peer bullying. The parent, Tracey Schweer, claimed that BSD had failed to train its staff to identify and prevent bullying and harassment, failed to supervise students, and for invasion of privacy.

The suit alleged that the student was punched in the stomach, kicked, threatened and punched in the chest on three separate occasions during the 2009-10 school year. It also claimed school staff knew about the incidents and that the boy who bullied her son had a history of that behavior. In addition, the suit claimed staff at Five Oaks changed her son’s schedule, not the alleged bully’s, to separate them, which caused her son anxiety and depression.

After three days of jury deliberation, the school district filed a motion for a “directed verdict,” in effect taking the case from jury and asking the judge to decide. According to Camellia Osterink, BSD’s legal counsel, “We believed the plaintiff had not proved all the elements of the case and moved for a verdict on all counts,” and “[t]he judge agreed.”

The judge found that the district did not act negligently with respect to its students, did not invade the student’s privacy, and that damages did not result from the district’s conduct. In fact, court documents note that evidence provided by Schweer’s attorney helped establish that school staff followed proper procedures. ”The plaintiff has shown that when confirmed physical contact occurred and threatening remarks were made, Five Oaks’ teachers and administrators acted swiftly to respond to the incident.”

The invasion of privacy claim related to Schweer giving permission to the Five Oaks principal to talk with her son’s doctor, but the assistant principal also sat in on the discussion. The judge ruled that Schweer’s attorney failed to prove that it was an intentional intrusion or that any private concerns were discussed, among other evidence, according to court documents.

School districts rarely takes cases to trial, preferring to settle out of court. This was BSD’s first trial in at least six years, Osterink said. Nonetheless, BSD chose to fight it because “the district did the right thing,” Osterink said. “They did everything they could to address the concerns of the parent. No other bullying incidents happened after the watershed incident.”

In her suit, Schweer sought $300,000. At one point, BSD offered Schweer $1,500 to settle the case, Osterink said. BSD’s legal costs so far have been $45,000.

Source:  The Oregonian, 5/15/12, By Wendy Owen

[Editor's Note: As the above article points out, school districts prefer settlement to litigation, in part because the cost of defending a suit is typically more that the cost of settlement. As BSD's legal counsel noted, the facts appeared to strongly favor the school district. On the other hand, in April 2012, Legal Clips summarized an Associated Press (AP) article in The Washington Post, which reported that the Ramsey Board of Education in New Jersey had agreed to pay $4.2 million to settle a lawsuit by a middle school student who was paralyzed when a known bully punched him in the abdomen. The school district had been in negotiations for the past two months with the parents.]

California advocacy group’s suit challenges laws governing teacher tenure rules

The Los Angeles Times reports that Students Matter (SM), a non-profit group known to oppose teachers unions, has filed suit on behalf of eight students, taking aim at California laws governing teacher tenure rules, seniority protections and the teacher dismissal process. SM’s suit is seeking to overturn five California laws that, it charges, make it too difficult to dismiss ineffective teachers.

According to the lawsuit, filed in Los Angeles County Superior Court, ”[a] handful of outdated laws passed by the California Legislature are preventing school administrators from maintaining or improving the quality of our public educational system.” The suit contends that teachers can earn tenure protections too quickly, in two years, well before their fitness for long-term employment can be determined.

The suit also seeks to invalidate the practice of first laying off less experienced teachers during a budget crisis, rather than keeping the best teachers. And it takes aim at a dismissal process that, it alleges, is too costly, too lengthy, and typically results in ineffective teachers holding on to jobs.

The move to address teacher quality has become a national issue from the Obama administration on down. However, Joshua Pechthalt, California Federation of Teachers president, contends such efforts are misguided at best, especially at a time when sweeping budget cuts have decimated schools. “We should be fighting like crazy to make sure schools are not laying off any teachers, except those who shouldn’t be in front of a classroom,” he said.  Pechthalt also pointed out that those teachers can be dealt with under current laws if school systems have sufficient resources and use them properly.  This latest legal effort is the most sweeping of several underway, all of which affect the Los Angeles Unified School District (LAUSD).

The first, Reed vs. LAUSD, resulted in a settlement that allows the nation’s second-largest school district to bypass some campuses when layoffs are necessary. The teachers union has appealed.  On Monday, a coalition of allied groups called for the teachers union to drop its appeal. Another ongoing case alleges that LAUSD is not following state laws that mandate regular teacher evaluations, and that they need to include evidence of student achievement. The defendants in the latest litigation include state elected officials, LAUSD, and a San Jose school district.

LAUSD Superintendent John Deasy commended the intent of the advocates for trying to force needed changes. The lawsuit “is aggressively going after long-term issues which have thwarted the rights of students to a high-quality education,” Deasy said.

The LAUSD school board has supported speeding up teacher dismissals. Deasy also wants to extend the time needed to earn tenure. The lawsuit, however, does not propose specific solutions to the laws it deems objectionable.

Source:  Los Angeles Times, 5/16/12, By Howard Blume

[Editor's Note: In reference to the LAUSD settlement mentioned in the above article, Legal Clips summarized a January 2011 Associated Press (AP) article in The Washington Post, which reported that a Los Angeles County Superior Court had approved a sweeping overhaul of teacher layoff procedures. While education reformers hailed the settlement agreement as a landmark decision to keep more effective instructors in the classroom, unions denounced it as a step toward dismantling tenure. The settlement was the result of a lawsuit brought in 2010 by the American Civil Liberties Union of Southern California, which charged that inner-city students’ rights to a quality education was being violated by a last-hired, first-fired layoff policy. 

Efforts to eliminate tenure and seniority-based layoff policies have been occurring throughout the nation. For example, in May 2011, Legal Clips summarized an AP article in the Boston Globe, which reported that the Connecticut Coalition for Achievement Now (CCAN), a school reform advocacy group, was pushing the Connecticut legislature to stop school districts from using seniority to determine which teachers could face budget-related layoffs. CCAN contended that that year’s state and local budget constraints made layoffs a real threat to talented new teachers, who were first in line for cuts in many districts, while seniority shielded other teachers, even with well-documented ineptitude.]

Civil rights group threatens lawsuit over Alabama district’s policy banning male students from wearing earrings

The Birmingham News reports that the Southern Poverty Law Center (SPLC) has given the Jefferson County school board until June 15th to change its policy banning boys from wearing earrings, or face a federal lawsuit. SPLC staff attorney Sam Wolfe said Jefferson County’s school board attorney requested the one-month extension because the board is busy trying to close out the school year, which ends next week.

“My interpretation of it is that they’re taking this more seriously than they have in the past, and I hope by taking the extra time, they will make the right decision,” Wolfe said. SPLC sent a letter on April 25th to the board demanding that it reverse the policy that bans males from wearing earrings after Hueytown High School student Hunter Mahaffey reached out to SPLC upon being made to take his earrings out.

Carl Johnson, the attorney for the Jefferson County Board of Education, sent a letter to SPLC requesting an extension on the organization’s deadline because Superintendent Phil Hammonds had not had an opportunity to discuss the matter in depth with the board. In the letter, Johnson said that “the last six weeks of a school year typically are the busiest for any school district under the best of circumstances, largely because personnel decisions for the coming year must be made before year’s end.”

Johnson’s letter also pointed out: “This year, there also are several education-related legislative matters, including passage of an education budget, that await closure during the state Legislature’s regular session which soon ends. Circumstances such as these have combined to place extraordinary demands upon the school district’s staff as they work in preparing for the upcoming school year.” Johnson said he could not guarantee the board will change its mind about the policy, but assured Wolfe that “its consideration will be thoughtful and thorough, with full involvement from a board and administration that are committed to finding constructive and nonadversarial solutions in all matters.”

The SPLC’s original demand letter stated that Mahaffey is challenging gender stereotypes about what it means to be male. Wolfe said he hopes the board makes the right decision by overturning the outdated policy. “If not, we will have to take the next step, which is to file a federal lawsuit,” he said. “But we know school is ending in a week or two and they have a lot to do right now.”

Source:  The Birmingham News, 5/15/12, By Marie Leech

[Editor's Note: In February 2012,  Legal Clips summarized an article in the New York Daily News, which reported that a Michigan charter school student, who is a cancer survivor and was growing out his hair to donate it to Locks of Love, was suspended for a week for violating the Madison Academy’s dress code with hair that went past his ears. Locks of Love donates hair to make wigs for cancer patients.]

ED finds Wisconsin’s request for NCLB waiver lacking

According to an Associated Press (AP) article in Education Week, Wisconsin’s application to the U.S. Department of Education (ED) for flexibility under the No Child Left Behind Act (NCLB) may be denied. ED found the state’s proposal for holding schools accountable vague and deficient. ED’s letter to state education officials last month said that a peer review panel found deficiencies in the state’s waiver application.

Doug Harris, a University of Wisconsin-Madison professor of education and public policy who reviewed the letter, said, “They would have to make major changes of the sort the state has never been willing to make.” State education officials have been working with federal education officials to modify and resubmit the waiver application by the end of the month, said Patrick Gasper, a spokesman with the state Department of Public Instruction. “One letter that’s a month old does not capture where the waiver is today,” said John Johnson, DPI’s Education Information Services director. “This is a long, collaborative process.”

Wisconsin’s application included proposals to rate schools based on student performance, improvement on state tests, progress toward closing the achievement gap and preparation of students for college and careers. Other factors that would influence ratings would include dropout rates and third-grade literacy levels. ED’s letter said Wisconsin had come up with a number of proposals that were commendable, but too short on detail.

State Senator Luther Olsen, who chairs the Senate Education Committee, said he had not seen the letter but that it apparently affirms concerns that were raised before the application was submitted. “Folks thought they would do a cursory, general waiver and get it, and at the end of the day it would be pretty hard to be held accountable for it,” he said. “The (U.S. Education) department is not letting Wisconsin get away with that at all.”

Source:  Education Week, 5/14/12, By AP

[Editor's Note: In January 2012, Legal Clips summarized an article in the Milwaukee Journal Sentinel, which reported that the Wisconsin Department of Public Instruction had posted a draft proposal seeking relief from NCLB's mandates. The proposal contained elements that had been talked about in state education circles for months, such as a plan for implementing a school accountability system, and stressed that Wisconsin students would soon be held to a higher standard on annual statewide achievement tests.]

Federal appellate court rules that ED’s regulation allowing teachers without full state certification to be “highly qualified teachers” is valid under current NCLB language

Renee v. Duncan, No. 08-16661 (9th Cir. May 10, 2012)

Abstract: In a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit (AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA) has ruled that before the passage of a 2010 congressional amendment (“Section 163″) to the No Child Left Behind Act (NCLB), the U.S. Department of Education (ED) regulation allowing states to deem teachers without full state certification, but participating in an alternative route to certification, as “highly qualified teachers” violated NCLB.  However, the panel’s majority held that after the passage of Section 163 and so long as it is in effect, the challenged regulation is consistent with NCLB.  The majority concluded that despite the passage of Section 163, the plaintiffs’ appeal is not moot.    

The majority also concluded that before the passage of Section 163, NCLB required the ED Secretary to report to Congress on states’ and school districts’ compliance concerning “highly qualified teachers” as that term was then defined in NCLB, but that the plaintiffs were not entitled to judicial enforcement of that reporting requirement. Finally, the majority ruled that the plaintiffs were not entitled to attorney’s fees based on their prior success in a previous appeal. Although the panel discussed the Article III standing issue, this summary addresses only the merits and mootness questions in detail.

Facts/Issues: The plaintiffs, a group of parents, students, and community organizations, challenged a part of ED’s December 2002 regulation, 34 C.F.R. § 200.56, which contained a more detailed definition of NCLB’s term “highly qualified teacher.” The plaintiffs alleged that the regulation was inconsistent with the statutory language then in effect.  NCLB, at that time, only provided for teachers with full state certification.  However, the challenged regulation (then and still) provides, in part, that a “highly qualified teacher” includes a teacher who had “obtained full State certification …, includ[ing] certification obtained through alternative routes to certification” under state law, but also when a teacher is “participating in an alternative route to certification program,” and “[d]emonstrates satisfactory progress towards full certification ….”

The plaintiffs argued that the inconsistent part of ED’s regulation harms students because it allowed California school districts to hire thousands of such under-qualified teachers, placing a disproportionate number of these teachers in minority and low-income schools in the state, violating NCLB. The U.S. district court granted summary judgment in favor of the Secretary, holding that ED’s regulation was not inconsistent with NCLB.

In July 2009, the Ninth Circuit panel issued its first opinion (Renee I), finding in favor of the Secretary, and vacating the district court’s decision for the plaintiffs’ lack of Article III standing to bring the suit. The panel then subsequently granted a petition for panel rehearing and withdrew its prior opinion.  After the rehearing, the panel, in September 2010, reversed the district court’s decision on the merits, issuing a new 2-1 opinion (Renee II) invalidating ED’s regulation for improperly expanding the regulatory definition of “highly qualified teacher.”  In October 2010, another petition for rehearing was filed, which was subsequently granted.

However, prior to oral arguments in that rehearing, Congress amended NCLB in December 2010 in Section 163 of a federal appropriations bill, expanding the statutory definition of “highly qualified teacher” to incorporate the part of the existing ED regulatory definition regarding teachers working towards, but have not yet obtained, full state certification through alternative route programs. However, Congress’ amendment to NCLB remains in effect only through the end of the 2012-2013 school year.

Oral arguments took place in June 2011, and the panel issued its decision and dissenting opinion on May 10, 2012, analyzing the effect of Section 163.

Ruling/Rationale:  Based on the enactment of Section 163, the panel’s majority affirmed the federal district court’s decision, finding ED’s regulation to be valid for as long as Section 163 remains effective. The majority pointed out that prior to the passage of Section 163, the language in ED’s regulation regarding teachers working towards, but have not yet obtained, full state certification through alternative route programs was invalid, “because it was inconsistent with the ‘unambiguously expressed intent of Congress’” that only fully state certified teachers are deemed “highly qualified teachers.” 

Because of Section 163′s sunset clause, the panel found it necessary to address the question of whether a decision on the merits of the plaintiffs’ claim was moot.  Neither party was contending that Section 163 had rendered the suit moot.  Finding Section 163 to be temporary in nature, the majority stated, “The Supreme Court has repeatedly held that a temporary halt to unlawful action does not moot a claim for injunctive relief.” Ultimately, the panel (including the dissenting judge) concluded that Section 163 had not mooted the appeal.

With respect to the plaintiffs’ claim that the Secretary had not properly complied with the pre-Section 163 requirement to report on compliance with NCLB’s “highly qualified teacher” provision, the majority found that the reporting requirement is “purely informational,” and lacked any enforcement teeth. The majority concluded that “[n]othing in NCLB provides that the Secretary’s reports to Congress have any legal consequences.” Lastly, the majority rejected the plaintiffs’ claim for attorney’s fees under the federal Equal Access to Justice Act, because it found ED’s position of how to interpret NCLB’s “highly qualified teacher” provision to be ”substantially justified.”

The judge, who dissented in part and concurred in part, agreed with the majority opinion on the issues of mootness and attorney’s fees. However, the judge again voiced his opinion, as in Renee II, that the plaintiffs lacked Article III standing to bring the suit.

Renee v. Duncan, No. 08-16661 (9th Cir. May 10, 2012)

[Editor's Note: Legal Clips September 2010 summary of Renee II included the panel's detailed analysis of the standing issue. The majority in Renee II concluded that the plaintiffs had satisfied the requirement elements for Article III standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  First, the plaintiffs had stated an injury in fact because the court was "bound to accept Congress’ determination that students taught by a disproportionate number of teachers without ‘full State certification’ have been injured in fact.”  Second, it found a causal connection between the promulgation of the challenged federal regulation and the later promulgation of the California regulations, in that “the federal regulation, and the piggybacking California regulations, have had the effect of permitting California and its school districts to ignore the fact that a disproportionate number of interns teach in schools in minority and low-income areas.” Lastly, it concluded that the redressability requirement was satisfied, because if ED’s regulation was invalid, then the California piggybacking regulations would leave the state out of compliance with NCLB’s requirement that “highly qualified teachers” have "full State certification,” unless the state eliminated it regulations.]

Iowa Supreme Court rejects suit challenging state’s school funding scheme

The Des Moines Register reports that the Iowa Supreme Court, in a 4-3 decision, has refused to reinstate a 2008 suit, brought by parents and students in the Des Moines, Davenport, and West Harrison school districts, which alleged the existence of a “disparity in educational outcomes (in Iowa) based upon where one goes to school.” The suit charged that state officials had failed “to provide similar educational opportunities for all of Iowa’s students.”  

The suit sought injunctions that would have forced the state to institute statewide standards and close the gaps between schools. A Polk County [trial court] judge threw the case out based on a variety of legal shortcomings. A majority of the state supreme court justices, citing slightly different reasons, agreed the suit should be rejected as an issue better reviewed by politicians than the court.

The majority opinion concluded that the plaintiffs, who cited statistics and reports to document Iowa’s allegedly mediocre test results in many educational areas, fell far short of proving any denial of a constitutional right. “Our decision does not foreclose future constitutional challenges to actions taken by state or local officials in the vital field of public education,” the opinion said. “We decide only that this case, brought by these plaintiffs, should not go forward because the factual allegations, even if proved, do not set forth a potential constitutional or statutory violation under the foregoing provisions.”

The majority ultimately concluded that “we believe the democratic process is best suited for resolution of those debates and can best accommodate the competing concerns of the many interested parties.” In addition to the majority opinion, the decision included two concurring and two dissenting opinions. The dissenting justices argued that the case should have been sent back to the trial court for further proceedings.

Source:  The Des Moines Register, 4/20/12, By Jeff Eckhoff

[Editor's Note: In identifying the issues, the majority opinion in King v. State of Iowa stated that this case "concerns Iowa’s standards for public schools. It asks us, in effect, to require the state to impose additional public school standards, urging that such action is both constitutionally and statutorily required."  In essence, the majority agreed with the state that the plaintiffs had raised a nonjusticiable "political question," best left to the state legislature to resolve.

The majority stated that "A number of these factors might support the conclusion that plaintiffs’ claim under the education clause presents a political question. To begin with, the text and history of the clause indicate a commitment of authority to the general assembly, rather than a constraint upon it."

The majority also pointed out that "this lawsuit asks the courts to enter into a longstanding debate over the merits of state mandates versus local control in public education. That may require an initial policy determination of a kind clearly for nonjudicial discretion."]

Teachers union seeks to halt school closures in New York City

The Queens Chronicle reports that the United Federation of Teachers (UFT) and the Council of School Supervisors and Administrators (CSA) have filed suit in state court against the New York City Department of Education (NYCDE) to stop the closures and restaffing of 24 schools in the city, including seven in Queens. The city’s Panel for Educational Policy approved Mayor Bloomberg’s plan to shut the schools at the end of June and reopen them when classes begin in September with new names.

The suit contends the plans for the 24 schools do not amount to closure, and therefore, the city cannot use current contract provisions to restaff the schools. According to UFT President Michael Mulgrew and CSA President Ernest Logan, “These sham closings are an attempt by the Department of Education to evade its duty to help these struggling schools succeed.” Their statement added, “We are asking the court to ensure that no final decisions are made on the staffing of these schools, pending an independent review by an arbitrator on the issue of whether the DOE is trying to get around its labor agreements.”

The city responsed that the schools will be closed, which will make it legal to seek to replace up to half the teachers at each of the schools. Although the mayor had previously said he wanted to replace about half the teachers at the targeted schools, city officials have since changed their tune and said there is no set number they are aiming to remove.

Schools Chancellor Dennis Walcott criticized the suit saying, “The UFT and CSA have shown that they would rather leave our students’ futures to the courts than do the difficult work of turning around failing schools and giving students the education they deserve.” He added, “We have already begun preparations to open these 24 new schools next fall, training their leadership teams and holding productive meetings with the UFT to begin the process of staffing the new schools. Sadly, today’s lawsuit could have damaging consequences for that process, jeopardizing the creation of exciting new schools with new programs, teachers and leadership structures.”

Under the closure plan, every teacher at the 24 schools has to reapply for their jobs, and a panel that includes representatives from the UFT, NYCDE, and the respective schools will then select which employees will remain. Those who are not accepted to work at their old schools will remain in the system, and will be placed in a pool of substitute teachers. This lawsuit marks the third time in three years that the union has sued NYCDE over school closures.

Source:  Queens Chronicle, 5/7/12, By Anna Gustafson

[Editor's Note: In February 2012, Legal Clips summarized an article in Bloomberg, which reported that Walcott released performance ratings for 17,666 of the city's more than 70,000 teachers that are based on student test scores and sociological variables, in order to comply with a state appellate court order. The release triggered union protests including a newspaper advertising campaign attacking the data’s reliability. The city “has combined bad tests, a flawed formula and incorrect data to mislead tens of thousands of parents,” UFT President Michael Mulgrew said.]

Federal court denies former school board member’s request to join suit over nondisclosure of mass mailing records

The North County Times reports that a California federal district court has denied the request of a former school board member to intervene in a freedom of information suit brought by the state Fair Political Practices Commission (FPPC) against the U.S. Postal Service (USPS). U.S. District Court Judge Garland E. Burrell, Jr., ruled that William Eisen’s request failed to meet the legal standards required to be allowed to argue alongside federal government attorneys representing USPS in the suit.

FPPC charges that USPS is improperly withholding records related to Eisen, a former school board member for the Manhattan Beach Unified School District. FPPC is responsible for regulating the political activities of public officials, lobbyists, and campaign committees. It also enforces California’s campaign reporting and disclosure requirements, conflict-of-interest rules, and election laws.

Since 2008, FPPC has been investigating allegations that Eisen, who at the time was facing a recall effort, violated campaign disclosure rules related to mass mailings, but USPS declined to release certain records to state investigators citing privacy concerns. State investigators wanted postal records that would help determine whether mass mailings purportedly from the South Bay Taxpayers Association and the South Bay Republican Club, in support of Eisen, were actually sent by Eisen.

Representing USPS, the U.S. Department of Justice (DOJ) raised no objections to Eisen’s intervention. However, FPPC attorneys contended that Eisen’s addition would only confuse and impede the case, and that his interests, which coincide with those of USPS, are being adequately defended by DOJ.

The outcome of this unusual records battle between California and the federal government could have broad repercussions. Although FPPC has determined that Eisen might have violated state law, it has taken no final action because the records that would fully substantiate the violation are being withheld by USPS.

FPPC Chairwoman Ann Ravel said that she fears if the state is not allowed access to the records, it will result in a shutdown of campaign disclosure enforcement. California, twelve other states, and the Federal Election Commission all regulate mailed political communications with regard to either the number of mailed pieces or dollar amount spent on the mail pieces before being categorized as a mass mailing.

Without compliance from USPS, neither these 13 states, nor the federal government will be able to determine whether a mailing is in violation of their respective laws. USPS’ denial of these claims will effectively shut down enforcement of state and federal laws regarding campaign communication disclosures in mass mailings, thereby depriving the public of the ability to identify and take action against persons in violation of these laws.

Source:  North County Times, 5/10/12, By Corey G. Johnson

[Editor's Note: Though the article does not spell in detail the bases for denying Eisen's request to intervene, Judge Burrell's written order denying Eisen's application to intervene provided two grounds for rejecting his request: (1) "Eisen’s assertions are insufficient to demonstrate that he has a personal legally protectable privacy interest at stake in this case;" and (2) "Eisen’s defenses and claims contain[] no question of law or fact that is raised [in] the main action.”]