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U.S. Supreme Court hears oral argument in housing discrimination suit with links to diversity in public schools – Justice Scalia could be ally of civil rights groups

According to a report from the Associated Press in U.S. News & World Report, the U.S. Supreme Court heard arguments in Texas Dep’t of Housing and Community Affairs v. The Inclusive Communities Project Inc., Docket No. 13-1371, a suit confronting the issue of whether plaintiffs may bring so-called disparate-impact claims under the federal Fair Housing Act of 1968, over alleged discriminatory effects in federally funded low-income housing projects. The State of Texas is challenging the use of so-called disparate impact lawsuits, which allege that even race-neutral lending or housing policies can have a harmful effect on minority groups.

During arguments before the nine justices, Justice Scalia appeared to agree with the Court’s four liberal justices that the law can be used to ban housing or lending practices without any proof of intent to discriminate. Scalia said Congress seemed to have such lawsuits in mind when it passed the law in the 1960s, and amended it in 1988, to eliminate segregation in housing. “I find it hard to read those two together in any other way than there is such a thing as disparate impact,” Scalia told Texas Solicitor General Scott Keller.

A number of civil rights groups have asserted that the Supreme Court’s conservative wing took up the case for the purpose of barring the use of the disparate impact theory in Fair Housing Act suits. They are hoping that Justice Scalia and/or Justice Kennedy, who is often the swing vote, will join the liberal wing of the Court to uphold use of disparate impact. Later in arguments Scalia made comments critical of disparate impact when he told Michael Daniel, lawyer for a Texas fair housing group, that “racial disparity is not racial discrimination.”

The case before the Court involves an appeal from actions by officials accused of awarding federal housing tax credits in a way that steered low-income housing to mostly poor, black neighborhoods in Dallas and generally kept the units out of wealthier white enclaves. A Dallas-based fair housing group, Inclusive Communities Project Inc., sued the Texas Department of Housing and Community Development in 2008. The group alleged that agency policies were keeping Dallas neighborhoods segregated and denying blacks a chance to move into safer neighborhoods with better schools. The housing advocacy group couldn’t prove Texas officials were intentionally biased. But a federal appeals court said the group could use statistics to show that the policies still harmed black residents in violation of the Fair Housing Act.

Chief Justice Roberts was among those expressing serious doubts about the tactic. “It is very difficult to decide what impact is good and what impact is bad,” Roberts said. What if one community wants to build low-income housing to revitalize minority neighborhoods, while another wants to integrate white areas, he asked. “Which is the bad thing to do?”

Solicitor General Donald Verrilli, who argued in favor of disparate impact, said both plans may ultimately pass muster. As in the Texas case, Verrilli said a community still has a chance to justify a race-neutral policy that has a negative impact on minorities.

Roberts pressed Verrilli with the same question three times, complaining that he wasn’t getting an answer. Verrilli said such cases were outliers and said typical cases “in the heartland” such as zoning restrictions or occupancy rules are more straightforward. Justice Anthony Kennedy said it seemed “very odd to me” that disparate impact could apply to either case.

Scott Keller, the Texas Solicitor General, stressed that there was no clear language authorizing discriminatory-impact lawsuits when the housing law was passed in 1968. While employment discrimination laws seem to allow it, he said it is not explicitly covered under the Fair Housing Act.

Justice Ginsburg called that argument “a little artificial” because the theory was not mainstream until the Supreme Court approved its use for employment discrimination cases in 1971. Justice Breyer noted that every appeals court to consider the question for the past 40 years has found disparate impact acceptable in the housing context.

Source: U.S. News & World Report, 1/21/15, By Sam Hananel (AP)

[Editor's Note: In addition to the AP coverage of oral argument, Mark Walsh discussed the case in his Education Week School Law Blog. Walsh focused on those civil rights groups that filed briefs stressing the link between housing opportunities and racial diversity in schools, which argue that the unavailability of disparate-impact claims would worsen racial isolation in the nation's classrooms. His blog also pointed out that the Supreme Court's ruling could affect schools by potentially limiting the power claimed by the U.S. Department of Education (ED) to sue over racially disparate effects in schools.

Walsh points to the State of Texas' brief, opposing the use of the disparate impact theory, citing the ED's Office for Civil Rights (OCR) October 2014 "Dear Colleague Letter" (DCL), which Texas contends claims authority under the Civil Rights Act of 1964 to enforce against, as the letter put it,  "facially neutral policies that are not intended to discriminate based on race, color, or national origin, but do have an unjustified, adverse disparate impact on students based on race, color, or national origin." The Texas brief argues OCR's DCL is an example of a federal agency seeking "to impose disparate-impact regimes based on statutes that have been held by this court to extend only to intentional discrimination."] 

 

 

 

 

 

Judge overseeing North Carolina’s long running school funding litigation alleges that state’s attempt to revise student achievement standards amounts to “academic double speak”

According to an Associated Press (AP) report on WRAL.com, Superior Court Judge Howard Manning Jr., who was appointed by the North Carolina Supreme Court to oversee the state’s compliance with the supreme court’s rulings in the 20 year-old school funding litigation known as Leandro, has scheduled a hearing this week to examine whether state education officials are complying with their constitutional obligation to give every North Carolina child the opportunity to have a sound, basic education. The judge has expressed concern that North Carolina Board of Education (NCBE) officials are trying to define their way out of their duty to educate all of the state’s children.

Judge Manning wants the state to explain a March 2014 NCBE decision to change the definition of who is learning at grade level. He alleges that the change waters down requirements and buries them in “academic double speak.” In his order scheduling the hearing, the judge said that the new five-level measure of student achievement includes a mid-range score that deems tested third-graders as prepared for the next grade level but requires continuing help from a teacher in order for the students to perform successfully in fourth grade.

Dismissing NCBE’s claim that its standard demonstrates student readiness, Judge Manning said, “[T]hey are NOT solidly at grade level and are NOT well prepared for the next grade which is the Leandro definition of obtaining a sound, basic education at grade level.” The judge contends that thousands of North Carolina’s 1.5 million public school students reach their teenage years barely able to read or do simple math.

In Leandro, the North Carolina Supreme Court held that it’s not up to courts to determine the constitutionally required level of spending on education. Nonetheless, it concluded that students must have the opportunity to become equipped with the knowledge and skills in language, math, history, economics and other subjects they need to compete for  jobs or higher education and become functioning members of society.

Source: WRAL.com, 1/20/15, By Emery P. Dalesio (AP)

[Editor's Note: The North Carolina Supreme Court's Leandro decisions have an effect on K-12 education beyond school funding. Hoke County Board of Education v. State of North Carolina, litigation that is pending in the North Carolina Supreme Court, involves whether the state is fulfilling its constitutional duty to provide at-risk children with access to pre-kindergarten programs. In an August 2013 Sua Sponte item, Legal Clips reported that the National School Boards Association (NSBA) and the North Carolina School Boards Association (NCSBA) filed an amicus brief in Hoke County Board of Education v. State of North Carolina arguing that “the trial court properly applied the landmark decisions in Leandro I and Leandro II in enjoining the State, through the General Assembly, from denying disadvantaged children the opportunity to receive the additional assistance necessary for them to have the opportunity for a sound basic education.”  The current suit, also known as Leandro III, is the continuation of  a legal dispute that began almost twenty years ago and has been before the North Carolina Supreme Court twice before.]

 

 

 

 

Ninth Circuit hears arguments in suit over Arizona law restricting ethnic studies courses in the state’s public schools

According to the Huffington Post, a three-judge U.S. Court of Appeals for the Ninth Circuit panel recently heard oral argument in a suit challenging Arizona’s 2010 ethnic studies law. The law prohibits courses that promote the overthrow of the U.S. government, kindle ethnic resentment, foster ethnic solidarity or treat students as members of a group rather than as individuals.

The suit is on appeal before the Ninth Circuit panel after a federal district court in Arizona upheld the law with the exception of the provision making it illegal to design a course for a particular group of students. Attorney Erwin Chemerinsky, representing the plaintiffs, a group of students, argued that the law is too vague, limits the free speech of teachers and students, and discriminates against Mexican-Americans in violation of the Constitution’s equal protection clause in the 14th Amendment.

The panel questioned Chemerinsky’s contention that the law restricts the students’ free speech by limiting their course options and appeared more interested in whether it discriminates against Hispanic students. The sanction isn’t being taken against the student,” Judge Richard Clifton said. “The sanction is being taken against the course.”

The legal dispute began when state officials identified Tuscon Unified School District’s (TUSD) Mexican American Studies (MAS) program as in violation of the law. In 2012, TUSD bowed to state pressure and eliminated the MAS program. 

During argument, Chemerinsky stressed that the Arizona Education Department’s (ADE) commissioned audit of TUSD’s MAS curriculum praised the curriculum for fostering critical thinking and recommended expansion. He noted that despite the audit report the then head of ADE John Huppenthal found TUSD in violation of the ethnic studies law anyway.

Chemerinsky also pointed out that a study in the American Educational Research Journal concluded that the curriculum boosted student performance on state tests and increased the graduation rate in the majority-Latino district. He said, “The question is — in light of those statistics — is there anything that explains this [law] other than discriminatory animus?”

The attorney for Arizona, Leslie Kyman Cooper, disputed the contention that the law aimed to discriminate against Mexican-Americans. She noted that, hypothetically, a Japanese studies course designed primarily for Japanese-American students might also violate the law. The law, she said, didn’t aim to restrict Mexican-American access to education, but rather “divisive, segregated, separatist teaching.”

Cooper appeared flustered at times as the judges questioned her claim that evidence of the prohibited program’s effectiveness was irrelevant because the government has the authority to set curriculum. “That doesn’t make it irrelevant,” Clifton shot back. “It would seem to demonstrate evidence of discriminatory intent.”  Cooper argued the appeals court should reaffirm the provision, prompting questions from the judges, who wondered why the state would want to prevent the teaching of courses that might appeal to certain groups of students.

Senior District Judge Jed Rakoff asked whether a hypothetical course on Chinese history would violate Arizona’s law because students of Chinese heritage would be more likely to take it. Cooper said it might. “You’re saying we don’t want ethnic minorities to develop any kind of ethnic pride?” Rakoff asked. “I’m not sure it’s the purpose of the public school system to inculcate ethnic pride,” Cooper responded. “I don’t know that there’s a constitutional right to classes that inculcate ethnic pride.”

Huffington Post, 1/15/15, By Roque Planas

[Editor's Note: In March 2013, Legal Clips summarized a decision by the  federal district court in Acosta v. Huppenthal granting the state’s motion for summary judgment, dismissing the plaintiffs’ claims that Arizona Revised Statute § 15-112, which limits school districts’ ability to provide certain race-related curricula, violates their First Amendment speech rights and Fourteenth Amendment due process and equal protection rights. However, the court found unconstitutional one provision in the statute which prohibited classes designed primarily for students of a particular ethnic group. Nonetheless, it was severable from the other portions of the statute, leaving the bulk of the law intact.] 

 

 

 

 

 

 

 

 

 

 

 

 

 

NSBA Council of School Attorneys Webinar January 21, 2015 – Conflict in Transgender (Title IX) Law and Legal Ethics

Two roads diverge in transgender Title IX law. One presents the position of OCR, the other, emerging standards from courts. Which “perhaps has the better claim?” And how do our ethical obligations as attorneys play a role in our actions and advice to our clients in this unsettled area? By exploring ethics rules, OCR enforcement guidance and case law tensions, we’ll never really know or “travel both and be one traveler…” But we hope it makes “all the difference.” (Apologies to Robert Frost) Ethics credit pending in many states. Please contact Laura Baird at lbaird@nsba.org with all CLE inquiries. Register now for this webinar.

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Tammy Carter, NSBA Senior Staff Attorney
  • Presenter: Lawrence J. Altman, Kansas City Public Schools, Kansas City, MO, and Anne Carl, Law Office of Anne Carl PLC, Bisbee, AZ

Please Note: CLE credit for COSA live webinars may be available in your state. Please contact Laura Baird at lbaird@nsba.org for more information.

Lawsuit says Washington State district discriminates against female wrestlers

According to komo news.com, the father of two high school female wrestlers has filed suit against Federal Way School District (FWSD) alleging that  the school district’s wrestling teams are not treated equally. Gerald Carprio has two daughters in the school district’s wrestling program and he alleges that the girls teams are treated differently than the boys.

Some of the disparities Carprio points to are: the girls practice mostly in the cafeteria, while the boys practice in the wrestling room; the girls get only one uniform and the boys get two; and, the boys get a larger travel allowance and more matches than the girls. FWSD declined to comment on the suit, but issued a statement that said: “We are proud of the breadth and depth of our district’s athletic programs, including wrestling … and remain committed to providing a variety of choices for both girls and boys to participate in athletic activities.”

Source: komonews.com, 1/6/15, By Michelle Esteban

[Editor's Note: In January 2014, Legal Clips summarized a ruling by a federal district court in Pennsylvania in Beattie v. Line Mountain Sch. Dist. issuing a preliminary injunction ordering a school district to allow a female student-athlete to participate on the junior high school’s all male wrestling team pending a decision on the merits of the student’s claim. It concluded that she was likely to prevail on the merits of her Fourteenth Amendment equal protection claim because none of the three reasons the school district articulated demonstrated an “exceedingly persuasive justification” for the prohibition.]

 

Michigan district sues former superintendent alleging he diverted district resources, including his own time, to starting a private education consulting firm

The Detroit Free Press reports that Ferndale Public Schools Board of Education (FPSBOE) has filed suit in state court against former superintendent Gary Meier and his company, Equity Education Management Solutions, alleging that Meier “used and/or diverted resources of the district, including his own time and that of other district employees, to activities involving another company.” Equity Education Management Solutions manages two Detroit charter schools.

The lawsuit contends that Meier was contractually obligated to “devote his full time and effort to his job as superintendent,” though he was allowed to undertake some consulting work, speaking engagements, writing, lecturing or other professional activities. It alleges that FPSBOE discovered that he had breached his contract when it learned that Meier and other Ferndale employees were involved in forming, managing and operating Equity Education Management Solutions, described in the lawsuit as an educational consultant service provider.

The lawsuit claims that Meier dedicated extensive preparation prior to that date and did not notify the board that he was undertaking any consulting services for or on behalf of the company. It states, “Meier decided to immediately resign and retire as superintendent of Ferndale Public Schools in May, 2014 to avoid any further investigation or [sic] his involvement with Equity.”

According to the suit, “Under the circumstances set out above, it would be inequitable and unjust for defendants to retain and not to compensate plaintiff for the value of the resources that were diverted and used while Meier served as superintendent in his efforts to establish the various charter schools that he is now involved in operating.” FPSBOPE is seeking an amount in excess of $25,000.

Meier declined to comment saying that he had not seen the suit.

 

Source: Detroit Free Press, 1/13/15, By Lori Higgins

[Editor's Note: FPSBOE's legal complaint contains three counts: (1) breach of contract; (2) unjust enrichment; and (3) tortious interference, based on Meier's failure to complete his contractual term as superintendent.] 

 

 

 

Tenth Circuit rejects fomer student teacher estate’s retaliation claims; rules estate failed to show his termination was pretextual

Estate of Carlos Bassatt v. School Dist. No. 1, No. 13-1244 (10th Cir. Dec. 31, 2014)

Abstract:  A U.S. Court of Appeals for the Tenth Circuit three-judge panel has ruled that a Colorado school district’s proffered reason for terminating an individual from his student teaching assignment was not a pretext for discriminating against him on the basis of ethnicity. It concluded that the student teacher’s Title VII retaliation claim failed, as did the retaliation claims under 42 U.S.C. § 1981 and § 1983, because all of the retaliation claims depend on the McDonnell Douglas burden shifting analysis and he failed to present evidence that rebutted the defendant’s claim that his misconduct was the motivating factor for the decision to terminate him.

The panel, noting the general rule that federal courts do not give preclusive effect to the findings of state administrative agencies, stated it would give preclusive effect to such findings if reviewed by a state court. As a result, the panel determined that it was bound by the administrative agency’s Final Order I, which held that the student teacher had established a prima facie case of retaliation, but came to no conclusion on the ultimate issue of retaliation. However, the panel declined to give preclusive effect to the agency’s Final Order II, which held that the school district’s proffered non-discriminatory reason for terminating the student teacher was a pretext.

The panel rejected the three arguments advanced by the student teacher that were meant to show that the school district’s reason for terminating him was pretextual. First, it rejected his contention that the federal district court had incorrectly assigned the burden of proof to him. Second, it found that the school administrator had sufficient evidence to support his credibility determination. Finally, the panel concluded, as discussed above, that Final Order II had no persuasive value.

Facts/Issues: Carlos Bassatt, who was Hispanic, was studying for his Masters in Education. As part of his required coursework, he was student teaching at West High School (WHS), which is in School District No.1 of the City and County of Denver, Colorado (SD1). Student teachers do not have teaching contracts with SD1 and are not district employees. Maria Iams, a SD1 employee, accused Bassatt of masturbating while sitting in his car, which was parked in a WHS lot. Iams reported the incident  to a colleague, who in turn informed Officer Vicente Damian, a Denver police officer assigned to WHS as a resource officer.

Damian interviewed Iams and had her view the surveillance tape of the parking lot. She was unable to identify the man on the tape as the man she saw masturbating. However, WHS Dean of Students Dan Trujillo identified Bassat as the man in the tape. Damian prepared a written statement and incident report. WHS Principal Patrick Sanchez was notified of the incident.

Sanchez and Damian met with Bassatt and informed him that he had been accused of masturbating in his car in the WHS parking lot. Bassatt denied the allegations. Sanchez informed Bassatt that he was being placed on administrative leave pending further investigation. After speaking with Iams and Bassatt, Damian concluded that Iams was telling the truth.

Although Damian issued a citation to Bassatt, the district attorney’s office  declined to prosecute the case. After learning that no charges had been filed, Sanchez emailed Bassatt and advised him that he could return to work. However, SD1’s Director of Labor Relations Bart Muller informed Sanchez that the district attorney’s decision not to prosecute did not prevent the school district from taking action against Bassett for his alleged misconduct. Muller also stressed to Sanchez the importance of student safety.

Sanchez and Muller met with Bassatt again. Bassatt admitted that he had been reclining in his car in the parking space next to Iams, but denied that he had been masturbating. Bassatt then declared that the accusation was racially motivated and that the District’s decision to end his placement at West was discriminatory. On September 27, 2007, SD1 advised Bassatt that he was terminated from his student teaching placement.

Bassatt filed a complaint with the Colorado Civil Rights Commission (CCRC) seeking an administrative hearing. After a two-day hearing, an administrative law judge (ALJ) concluded that Bassatt had established neither discrimination nor retaliation claims because he had failed to: (1) establish the existence of circumstances giving rise to an inference of unlawful discrimination, and (2) establish a prima facie case of retaliation. Bassatt appealed the ALJ’s finding regarding his retaliation claim to the CCRC.

The CCRC issued a final order (Final Order I), reversing the ALJ’s conclusion on the retaliation claim. Final Order I found that Bassatt had in fact established a prima facie case of retaliation and, further, that the District’s reason for terminating Bassatt was pretextual. The District appealed Final Order I to the Colorado Court of Appeals. The court issued an opinion affirming the CCRC’s finding that Bassatt had established a prima facie case of retaliation.

The appellate court did not consider the question of pretext or the ultimate issue of retaliation. After reversing “in part the [CCRC’s] rulings on the ALJ’s findings of fact,” it remanded the case back to the CCRC “to reconsider the ultimate issue of whether the [District’s] termination of Bassatt constituted discriminatory retaliation . . . .”

Before the CCRC had reconsidered the case on remand, after the Colorado Court of Appeals’ decision, Bassatt filed suit against SD1 in federal district court. Bassatt raised a number of claims in his complaint, including unlawful retaliation by SD1 in violation of Title VII and retaliation by SD1 because it breached his student teacher agreement in violation of 42 U.S.C. §§ 1981 and 1983. While the case was pending in district court, the CCRC issued its second order (Final Order II). The CCRC concluded in Final Order II that Bassatt had established that the District had terminated him in retaliation for his accusations of discrimination. It concluded specifically that the District did not provide a legitimate, non-discriminatory reason for its action. Final Order II was never reviewed on appeal.

In August of 2012, Bassatt died. Following Bassatt’s death, his estate was substituted as plaintiff in the district court suit. The district court granted SD1’s motion for summary judgment. It concluded that the estate had failed to make a sufficient showing of pretext to defeat summary judgment on its Title VII retaliation claim. It also dismissed the Estate’s claims under 42 U.S.C. §§ 1981 and 1983 because Bassatt did not have a contract with the District to student teach, which would have provided for continued employment and established a property right protected by due process.

Ruling/Rationale: The Tenth Circuit panel affirmed the district court’s decision. Before addressing the substance of Bassatt’s arguments, the panel clarified the role that Final Order I and Final Order II would play in its analysis of Bassatt’s retaliation claims. It reiterated that the “findings of a state administrative agency generally do not bind federal courts.” However, it acknowledged that “federal courts must give preclusive effect to factual and legal determinations made by state courts when reviewing state administrative agency actions.”

As a result, the panel concluded that it was bound by the “Colorado Court of Appeals decision reviewing Final Order I because the state agency’s determination was reviewed on appeal by a state court.”  With, regard to Final Order II, which found pretext and retaliation, the panel found that it was not bound by that administrative decision because it was never reviewed by a state court.

Turning to the Title VII retaliation claim, the panel determined that it should be subject to the McDonnell Douglas burden-shifting approach. Having concluded that it was bound by the Final Order, which held that Bassatt had established a prima facie case of retaliation, the panel focused on the issue of pretext. Specifically, whether the non-discriminatory reason proffered by SD1, i.e., the misconduct in the parking lot, for terminating Bassatt’s student teaching assignment was a pretext for discrimination based on ethnicity.

The panel rejected all three reasons put forth by Bassatt in support of his argument that SD1’s reason for termination was pretextual. First, it found that  the district court had correctly assigned the burden of proof in regard to the pretext question. It stated: “When an employment decision is made based on alleged misconduct, the plaintiff must present evidence that rebuts the defendant’s claim that the misconduct was the motivating factor for the employment decision.”

Next, the panel rejected the contention that there was insufficient evidence for Sanchez to make the determination that Iams was credible. While conceding that the failure to conduct a fair investigation can raise an inference of pretext, such a circumstance did not exist in the present case because Sanchez heard both Bassatt and Iams’ accounts of the incident. It also pointed out that Sanchez , as the principal, “had to weigh numerous competing interests, including the safety of his students.” The panel concluded that, “Sanchez’s decision to believe Iams over Bassatt, when there was no direct evidence either way, is not evidence of pretext.”

The panel found nothing about SD’s investigation that suggested deficiencies from which a court could infer pretext. While acknowledging discrepancies in Iams’ report of the incident, it pointed out that Bassatt had admitted that he was the person reclined in the driver’s seat of the car. It also found that Bassatt was focused on the wrong question, i.e., whether the inadequacy of the investigation foreclosed Sanchez from believing Bassatt. Instead, the panel identified the relevant inquiry as “whether Sanchez subjectively, but honestly, believed that Bassatt had engaged in the misconduct.”

Finally, the panel rejected Bassatt’s argument that Sanchez’s email invitation to Bassatt to return to work is evidence that Sanchez did not truly believe Bassatt had engaged in the misconduct. It concluded that the argument failed “in light of the Colorado Court of Appeals’ decision, which specifically reviewed and rejected this position.”

The panel agreed with the district court that Bassatt had failed to establish pretext. It emphasized that there was no evidence that Sanchez was motivated by anything other than the alleged misconduct and that Bassatt acknowledged that Sanchez genuinely believed Iams’s allegations. The panel also noted, “Sanchez is Latino, and we conclude that this undermines any suggestion of pretext.”

Finally, the panel agreed with the district court, in finding that  Final Order II was “neither binding nor persuasive.”

Addressing the §§ 1981 and 1983 claims, the panel said that they “are defeated because they too are subject to the McDonnell Douglas burden-shifting analysis.” It also asserted that even if there was pretext, Bassatt could not prevail on those claims because he did not have an employment contract with the school district. It pointed out that none of the documents referenced by Bassatt as part of his student teaching assignment constituted a contract to teach.

Estate of Carlos Bassatt v. School Dist. No. 1, No. 13-1244 (10th Cir. Dec. 31, 2014)

[Editor's Note: In November 2014, Legal Clips summarized a decision by a U.S. Court of Appeals for the Eleventh Circuit three-judge panel in Fong v. School Bd. of Palm Beach Cnty. holding that a teacher, whose contract was not renewed, failed to state a valid claim for Title VII discrimination based on national origin. The panel concluded that the direct evidence presented by the teacher was insufficient to show intentional discrimination. It also found that the teacher failed to establish her claim through indirect or circumstantial evidence. Assuming, without deciding, that the teacher had presented a prima facie case of discrimination, the panel concluded that the teacher had failed to meet her burden of showing that the legitimate nondiscriminatory reason for the contract nonrenewal proffered by the school district was a pretext for intentional discrimination.] 

New York City’s mayor lifts ban on cellphones in city’s public schools

Education News reports that Mayor Bill de Blasio is lifting the school system wide ban on students bringing their cell phones and other mobile technology, such as tablets, to school. The long-standing policy required students to leave the devices at home or store them at businesses, which often charged a fee, outside the school building.

The new policy provides for teachers and parents to work with each school’s administration to develop a plan tailored to the needs of the students, parents, and classroom instructors. Mayor de Blasio said the change will allow parents to contact their children, especially in the case of emergencies. He added that the plan would also end the inequity of the current ban, which is most strictly enforced at schools with metal detectors in low-income neighborhoods.

Under the new policy, schools that do not set up plans must allow students to bring phones to school, but the students will have to store the phones during the school day. Cell phones may be used for instructional purposes and students will be allowed to use them during lunch or in designated areas. The schools will increase training in responsible digital citizenship education and cyberbullying.

New York City Schools Chancellor Carmen Farina said that students need to understand that the new plan is a privilege and not a right.

Source: Education News, 1/8/15, Grace Smith

[Editor's Note: In November 2012, Legal Clips summarized an article in the NEMS Daily Journal reporting that the concept of “Bring Your Own Technology” (BYOT) has arrived at Northeastern Mississippi school districts. As schools try to add more technology during a time when they are receiving less funding, many will begin to consider allowing students to use devices they already own. That will include cellphones and electronic tablets like iPads.] 

 

 

California district files suit seeking court order banning parent from volunteering at children’s school and commenting about school officials

According to The San Diego Union-Times, Poway Unified School District (PUSD) has filed suit against a Painted Rock Elementary School (PRES) parent, seeking to block him from volunteering at the campus and making remarks about school officials. PUSD officials acknowledge that the  legal action, which is known as a “strategic lawsuit against public participation” (SLAPP), is unusual. The parent, Chris Garnier who is African American, charges that the action is rooted in racism and violates his right to free speech.

PUSD’s legal complaint alleges that Garnier, a former Marine and wounded war veteran, has made verbal threats against school employees, including Principal Mary Jo Thomas, and has exhibited menacing behavior, such as pounding on car windows to get the attention of other parents, and disrupting a September 2014 community forum at a local high school. Garnier denies the allegations and  responds by saying that the mostly white district is trying to ban him from the school because he is an African-American and has criticized decisions made by Thomas. He said he volunteered at the campus for two years, without problems, until she arrived.

The dispute in part centers around Garnier’s election in October 2014 to PRES’s school site council, a parent-teacher group that helps make decisions about campus programs and spending. The principal overturned the election, citing technical difficulties, according to court documents. A second election was held in which parents had to show a photo ID when they cast their ballots. Garnier didn’t win.

PUSD, along with some employees at PRES, obtained temporary restraining orders against Garnier. A hearing was set to determine if the orders should be made permanent. The orders would restrict Garnier’s ability to pick up and drop off his two children at school, and attend field trips. He could attend parent-teacher conferences only if escorted by district-hired personnel.

Garnier has filed an anti-SLAPP motion urging the court to dismiss the case, arguing that the orders would restrict him from speaking at public meetings about what’s happening at the school. Attorney Jack Sleeth, representing PUSD, filed a response to Garnier’s motion that contends that the case shouldn’t be dismissed because Garnier has “assaulted, yelled at, and harassed the administrators, employees and parents” of Painted Rock, “leaving grown men in fear and parents and staff in tears.” Garnier says that he speaks loudly because his career as a military helicopter pilot left him partially deaf.

Sleeth’s response also states, “Although passionate, Mr. Garnier has stepped over the bounds of First Amendment free speech by threatening the district’s employees with his conduct and causing them to reasonably fear for their safety.” The filing says Garnier has, among other things, intimidated administrators by stating that he was a war veteran with “12 confirmed kills.”

PUSD spokeswoman Jessica Wakefield said she didn’t know what technical problems led to the first election being scrapped, but said such incidents are rare. “I’ve never had to redo an election before,” she said.

Garnier’s attorney, Genevieve Suzuki, characterized the use of the photo ID in the second election as akin to unfair requirements that led to the Voting Rights Act of 1964, a civil rights law that outlawed discrimination based on race, color, religion, sex or national origin. “This requirement (for a photo ID) significantly affects voter turnout in any election,” Suzuki said. “Really, the only reason a school would require (identification) is to combat voter fraud. To think Chris was perpetrating some kind of high-level voter fraud in an elementary school election is irrational and completely ridiculous,” she said.

Source: The San Diego Union Times, 1/5/14, By Pat Maio

[Editor's Note: In January 2015, Legal Clips summarized an article in Vermont Today reporting that Addison Rutland Supervisory Union (ARSU) agreed to pay $147,500 in order to settle a suit brought by the American Civil Liberties Union of Vermont (ACLU-VT) on behalf of a parent that claimed that his First Amendment speech rights had been violated when he was banned from school district property and was, thus effectively, prevented from communicating with school board members at board meetings. In September of 2014, a federal district court ruled that ARSU violated Marcel Cyr’s right to free speech when officials barred him from attending board meetings or entering schools in the school district.]  

Vermont district agrees to pay almost $150,000 to settle parent’s First Amendment suit

Vermont Today reports that Addison Rutland Supervisory Union (ARSU) has agreed to pay $147,500 in order to settle a suit brought by the American Civil Liberties Union of Vermont (ACLU-VT) on behalf of a parent that claimed that his First Amendment speech rights had been violated when he was banned from school district property and was, thus effectively, prevented from communicating with school board members at board meetings. In September of 2014, a federal district court ruled that ARSU violated Marcel Cyr’s right to free speech when officials barred him from attending board meetings or entering schools in the school district. 

Cyr was served no-trespass orders in September 2011 and in March 2012 after school officials said they feared for their safety because of Cyr’s physical size, loud voice and the sometimes harsh comments he made about the education his son was receiving at Benson Village School. Cyr and his family moved out of Benson in 2012. Gilbert said the case served as a powerful message to school districts that parents and members of the public can’t be lightly denied access to open meetings. Gilbert said, “Basic rights were taken away. Schools need really good reasons to serve no trespass orders. This case is a win for everyone who cares for education, democracy and how public policy is done.”

After months of court-ordered mediation dealing with damages following the court’s ruling, ACLU-VT and ARSU reached a deal that ACLU executive director Allen Gilbert said was probably the best Cyr could hope for. “You have to think about what a jury might award in these cases,” Gilbert said. “Civil rights cases are hard because they can be very expensive to bring, and even if you prevail, the award might not be much.” According to Gilbert, the family will receive about $40,000 of the award, with the remainder going to pay for court fees and legal expenses.

ARSU Superintendent Ron Ryan said that he would rather lose a lawsuit than risk the safety of teachers, school staff members, students and parents. “We’re always looking at safety first,” Ryan said. “That’s what’s so difficult here. From a superintendent’s standpoint, I’ll always look at safety first whether I’ve lost a case or not.” However, Ryan remarked that moving forward, the school district would look at taking the court’s advice of utilizing alternatives to barring Cyr, which would include paying a police officer to stand guard at School Board meetings. “From this point forward, I guess if we suspect someone is being unruly, we’ll hire a law-enforcement officer to stand guard,” Ryan said. “It could be expensive, but that’s what we have to do.”

Source: Vermont Today, 1/6/15, By Brent Curtis

[Editor's Note: In September 2014, the federal district court in Vermont  in Cyr v. ARSU granted Cyr summary judgment on his First Amendment freedom of expression claim and his Fourteenth Amendment due process claim. However, it denied his motion for summary judgment on his First Amendment right to access claim and, instead, granted summary judgment to ARSU on that claim. The court concluded that the school district was could be held liable under § 1983 basis on the theory of municipal liability established in Monell v. Department of Social Services, 436 U.S. 658 (1978). 

The district court determined, as a matter of law, that the parent could not succeed on the right to access claim because there is no tradition in the United States of  municipal government meetings being open to the public. However, it came to the opposite conclusion in regard to the parent’s freedom of expression claim. After determining that school board meetings are designated open fora, the court concluded that by barring the parent from school district property, the school district effectively negated his ability to communicate with board members, which violated his First Amendment speech rights. It also found the school district had violated the parent’s due process rights by depriving him of his First Amendment right to express his views at school board meetings without adequate process.  

Finally, it concluded that the school district was liable for the violations of the parent’s freedom of expression and due process rights based on the theory of municipal liability because the superintendent was acting as final policymaker for the school district when he issued the notice of trespass barring the parent from school district property.

In November 2012, Legal Clips summarized an article in the Rutland Herald reporting that Rutland civil court judge William Cohen had dismissed a lawsuit by a Vermont school district against a parent who criticized school administrators and filed a request for documents about why he was barred from school grounds.

ACLU-VT, on behalf of  Cyr, sued ARSU, claiming that by labeling Cyr as dangerous and barring him from all school functions, the school district had allegedly violated his constitutional rights under the First Amendment and his right for due process as guaranteed by the Fourteenth Amendment.

In his ruling, Judge Cohen said that allowing the Rutland Addison Supervisory Union to proceed with its case against Cyr would “undermine the legislative scheme” of the state’s Public Records Act.]

 

 

 

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