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Student suspended for proselytizing activities on campus sues Washington state district

According to The Seattle Times, Michael Leal, a Cascade High School (CHS) student, has filed suit against Everett Public Schools (EPS), charging that CHS officials violated his First Amendment rights by suspending him for repeatedly handing out Christian tracts and preaching to other students on campus and during school activities. The Pacific Justice Institute (PJI) filed the suit in federal court on Leal’s behalf.

CHS officials insist they did not discipline Leal to stifle his free-speech rights, but because of his disruptive conduct. In one instance, they said that he yelled: ” Praise the Lord!” during class. They said that other students have complained and that Leal repeatedly refused to comply with EPS’ policies regarding distribution of written materials.

EPS’ attorneys contend that Leal’s activities,which included an amplified 20-minute extemporaneous sermon at a school “car bash and bonfire,” have resulted in “substantial disruption” at the school. CHS officials said that LEAL only stopped his sermon after they informed him that the police had been called.

The suit states that Leal was suspended for two days following a “car bash and bonfire” sermon. After returning to school, he went to a school volleyball game, where he “walked around the school among the other attendees, and gave tracts to parents and students who wanted one.” Despite further warnings by school administrators, Leal continued what his attorneys called his “expressive activities” at the school, during lunch breaks and in classes, which led to a second suspension, this time for three days.

CHS officials assert that the activities violate the district’s policies on student conduct and freedom of expression, according to court documents. The lawsuit alleges that those policies are unconstitutional and is asking the federal court to issue an injunction prohibiting the district from interfering with Leal’s free-speech rights. It is also seeking unspecified damages.

EPS sent a letter to Leal’s attorneys, saying that Leal was never told his activities were inappropriate because of their religious content, but rather that Leal’s behavior is disruptive at school and that other students have complained. EPS’ attorney Michael Patterson indicated that EPS administrators have attempted to cooperate with Leal, explaining to him that he could distribute some materials before school, after school or outside of class and that he could engage other students in conversations if they were willing. It was also suggested that he might “pursue his passion through a non-curriculum-related” school club.

Source: The Seattle Times, 11/19/14, By Mike Carter

[Editor's Note: In July 2014, Legal Clips summarized an article in The Oregonian reporting that Portland (OR) area residents are organizing by the hundreds to prevent the “Good News Club” from on-campus proselytizing of public school students. Protect Portland Children (PPC) may be the first large scale effort to oppose the “Good News Club.” Child Evangelism Fellowship (CEF) has organized Good News Clubs in approximately 4,300 schools nationwide.]


Sua Sponte: NSBA and OSBA join NEA and AFT in amicus brief urging U.S. Supreme Court to reverse Ohio Supreme Court’s holding that teachers are agents of law enforcement for purposes of the Sixth Amendment’s Confrontation Clause under state’s mandatory child abuse reporting laws

The National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA) have joined the National Education Association (NEA) and the American Federation of Teachers (AFT) in an amicus brief in Clark v. Ohio, No. 13-1352, urging the U.S. Supreme Court to  reverse the Ohio Supreme Court’s holding:

(1) that teachers are acting as agents of law enforcement when questioning a minor student regarding suspected child abuse pursuant to Ohio’s mandatory reporting law for purposes of the Sixth Amendment’s Confrontation Clause; and

(2) that out-of-court statements to a teacher in response to the teacher’s concern about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

The brief contends that the Ohio Supreme Court’s reasoning was flawed for five reasons. First, it argues that the Ohio Supreme Court adopted an expansive reading of the Confrontation Clause that would deputize millions of school employees (including teachers, counselors, and administrators), doctors, social workers, and even ordinary citizens as agents of law enforcement, and would render the U.S. Supreme Court’s well-established  “primary purpose,” test largely meaningless.

Second, amici contend that mandatory reporting statutes do not deputize teachers as agents of law enforcement. The brief states: “The argument that statements  to mandatory reporters of child abuse are testimonial under the Confrontation Clause has been raised in a number of cases, and both federal and state courts have consistently rejected it.”  It argues that deeming teachers, school administrators, and others as law enforcement based on mandatory reporting laws flies in the face of reporting laws’ purpose, which is to protect children.

Third, the brief argues: “Even if school personnel were treated as agents of law enforcement (or if the Court were to broaden the audience to whom testimonial statements can be made), within the unique context of school settings it is clear that in virtually all situations, their inquiries into a child’s injuries are non-testimonial because those inquiries are made for the primary purpose of protecting children and not primarily to advance a future prosecution….” Fourth, amici assert that by deeming teachers and other school personnel as law enforcement when engaged in their mandatory reporter duties could also have far-reaching consequences that would undermine the welfare of students and the educational process.

Finally, the brief contends “even assuming that statements made to teachers or school personnel could be testimonial in some circumstances this case can be resolved on narrow grounds because the statements at issue here were non-testimonial for at least three additional reasons.” One, when  “the primary purpose of an interrogation is to respond to an ‘ongoing emergency,’ its purpose is not to create a record for trial and thus is not within the scope of the Clause.”  Two, “Even if the emergency exception were not applied, the Court has noted that ‘there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.’” Three,”[I]n considering whether statements are testimonial, one must also look to the primary purpose of the victim, and this Court has intimated that the condition or competency of the victim is relevant to that determination.”

In NSBA’s press announcing the filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “This case has serious implications for school districts and the vast array of school employees who cooperate with community and government agencies to prevent harm to children. Misclassifying mandatory reporters of child abuse and neglect as criminal investigators overlooks their primary role as educators responsible for student safety and learning.”

Commenting on the Ohio Supreme Court’s erroneous decision, NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr. said, “The Ohio Supreme Court decision is inherently flawed and should be overturned. The clear focus of educators centers on the safety of the child, not the possible prosecution of the abuser. School personnel often seek to identify the perpetrator of abuse for reasons other than prosecutorial ones, such as obtaining child protective services or remedying a bullying situation.”

NSBA Council of School Attorneys Webinar December 2, 2014 – OCR Guidance on Equity in Access to Educational Resources: The Inside Story

On October 1, 2014, the U.S. Department of  Education’s Office for Civil Rights issued a significant guidance document on the topic of equal access to educational resources. In this webinar offered to COSA members, two OCR officials provide context and explanation of the directives contained in the letter, as well as unique insights into the process OCR is using to conduct investigations. They will also highlight remedies imposed in recent cases. Please bring your questions as half of our time will be devoted to Q&A.  Register now for this webinar.

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Hosts: Francisco Negrón, NSBA General Counsel and Sonja Trainor, Director, Council of School Attorneys
  • Presenters: Robert Kim, Deputy Assistant Secretary for Strategic Operations and Saba Bireda, Senior Counsel, Office for Civil Rights, U.S. Department of Education

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.

Eleventh Circuit rules Florida district did not discriminate against teacher of Chinese origin when it failed to renew her teaching contract

Fong v. School Bd. of Palm Beach Cnty., No. 13-10393 (11th Cir. Nov. 4, 2014)

Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel, in a per curiam (unauthored), unpublished decision has ruled 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.

Facts/Issues: Jianxin Fong was employed by Palm Beach County School District as a math teacher at Boynton Beach High School (BBHS). She worked on an annual contract basis from the beginning of the 2006-07 school year until the end of the 2008-09 school year. BBHS’s principal renewed Fong’s contract for the 2007-08 and 2008-09 school years. However, that principal was replaced for the 2008-09 school year because BBHS was rated “D.” Keith Oswald became the new principal and his mandate was to improve the school’s academic performance. The principal, along with two assistant principals, informally observed Fong’s classroom performance throughout the first semester of the 2008-09 school year.

When the principal spoke with Fong, who is of Chinese descent, for the first time after completing a brief observation of her class, he told her that she spoke with a “strong accent” that neither students nor he could understand. He told her to record her speech and listen to it. At a later date, the principal told Fong she talked too much in class, the classroom was too dark and students weren’t doing anything. BBHS administrators continued to express concern to Fong about her classroom  management abilities throughout the 2008-09 school year. In April 2009, the principal informed Fong and five other teachers via letter that their teaching contracts would not be renewed for the 2009-10 school year. Fong’s teaching contract expired on June 5, 2009.

When Fong questioned the principal regarding the nonrenewal, he told her that the decision was not based on performance, but rather on the fact that she was not a fit for the school. When the principal was deposed for the suit, he stated that his recommendation for nonrenewal was based on “classroom management issues, her resistance to feedback and change and [that she was] not willing to learn.” Although he conceded that she was highly qualified for her job, the principal said that he, along with his two assistant principals, determined  that Fong “wasn’t a fit for [BBHS].”

When asked what he meant by fit, the principal said that her teaching style was not suited to the type of students BBHS served because of her resistance to feedback and her negative attitude towards unmotivated and at-risk students. He later admitted that he was told by his supervisor not to get into details as to why a teacher’s contract was not being renewed. He was told that if one of them asked, he was just to tell her that she was not a good fit for the school.

Fong filed a suit in federal district court against Palm Beach County School Board (PBCSB). PBCSB filed a motion for summary judgment.  The Court granted its motion.

Ruling/Rationale: The Eleventh Circuit panel affirmed the lower court’s decision granting PBCSB summary judgment. The panel began by acknowledging that a Title VII national origin discrimination claim could be based on the employee’s accent. It pointed out that “an employee’s heavy accent or difficulty with spoken English can be a legitimate basis for adverse employment action where effective communication skills are reasonably related to job performance, as they certainly are in a teaching position.”

After viewing the principal’s comments regarding Fong’s accent in the context of the record, the panel concluded that such comments did not constitute “blatant” remarks “whose intent could mean nothing other than to discriminate “on the basis of” Fong’s national origin. It indicated that given the principal’s mandate to improve student academic performance, he had a legitimate interest in Fong’s ability to effectively communicate with her students. The panel concluded: “It could be reasonably inferred that Oswald’s statements were nothing more than an observation of a fact regarding her ability to effectively communicate with her students.”

Having found that Fong could not prove her claim through direct evidence of intentional discrimination, the panel next determined whether Fong had proof of her claim through circumstantial evidence, using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Assuming, without deciding, that Fong had established a prima facie case  of national origin discrimination, it turned to consider PBCSB’s reasons for not renewing Fong’s contract. In the district court, PBCSB proffered that “her work performance was not what was needed for BBHS” and that her “style of teaching was not the best method to engage the students and increase student achievement at BBHS.”

The panel found the proffered reasons to be legitimate and non-discriminatory. It then explored whether Fong had met her burden of showing that those reasons were a pretext for unlawful discrimination. In other words, Fong had to prove that the “proffered reasons were ‘a coverup for a … discriminatory decision.’” It explained: “We are not in the business of  adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.”

The panel rejected Fong’s attempt to recast PBCSB’ reason for not renewing her teaching contract as being for “poor performance.” It pointed out that the reasons articulated by the school board in district court were that Fong’s teaching and classroom-management styles were deemed not suited for the particular needs of BBHS students. According to the panel:

“The evidence relied upon by Fong is insufficient to show pre-text. The inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker’s head…The question is whether [Fong’s] employers were dissatisfied with her for these or other non-discriminatory reasons, even if mistakenly or unfairly so, or instead merely used those complaints about [her] as cover for discriminating against her because of her C[hinese] origin.”

It concluded that Fong failed to produce “evidence that would lead a reasonable trier of fact to believe that Principal Oswald’s opinion of Fong’s suitability to teach at BBHS, whether right or wrong, was unworthy of credence.”

The panel determined that the evidence did not point to a discriminatory animus that was the true reason for nonrenewal of her teaching contract. It found that the principal’s single comment regarding the difficulty of understanding Fong’s accented English, by itself, was inadequate to support a finding of intentional discrimination.

Fong v. School Bd. of Palm Beach Cnty., No. 13-10393 (11th Cir. Nov. 4, 2014)

[Editor's Note: As result of the trend of focusing on teacher effectiveness as witnessed by suits, such as Vergara v. State of California and the suit in New York state led by Partnership for Educational Justice, the number of Title VII suits similar to Fong may increase.]



Student barred from passing out religious flyers questioning evolution and promoting creationism to classmates at school files suit against California district

KXTV News 10 reports that Pacific Justice Institute (PJI), a legal advocacy group that defends individuals’ religious liberties, has filed suit against Loomis Union School District (LUSD) on behalf of a student at Loomis Basin Charter School who was prohibited from passing out flyers questioning the teaching of evolution in public schools to classmates during lunch. The flyers came from Genesis Apologetics, which offers seminars to parents and students on “Biblical Creation.”

The unidentified sixth grader asserts that the teaching of evolution in her science class is contrary to her religious beliefs. When she was discovered distributing the flyers, she claims that she was reprimanded by school officials and prohibited from passing out religious flyers without approval.

According to Kevin Snider, PJI’s chief counsel, “She’s not seeking the school to pass these out to everyone. She’s passing them out on her own to individuals.”  Snider added, “They want students to present literature to the school for preview and for the school to fix disclaimer. We say that’s not what the constitution provides for.”

In responding to the suit, LUSD’s superintendent issued a statement that reads in part: “Loomis Union School District respects and values freedom of speech among students, including their right to discuss their religious beliefs with classmates. What’s at issue in this case is whether the district’s policy regarding student-distribution of promotional materials is enforceable under state law.”

LUSD policy mandates  that all materials must be submitted to the school before being passed out by a student. If they meet the distribution standard, they must have a disclaimer making it clear that the materials are not endorsed by the district.

Source: KXTV News 10, 11/18/14, By Carlos Saucedo

[Editor's Note: On November 17, 2014, Valerie Strauss of the Washington Post reported that Orange County School Board (FL) is considering changing its materials distribution policy, which currently allows religious groups to distribute religious material, such as Bibles, at public high schools. The impetus for the change is that a group known as The Satanic Temple (ST), recently announced that they wanted to disseminate material on the “philosophy and practice of Satanism.”

ST's demand came after atheists had secured the right to counter the distribution of Bibles. The board will vote in the next few months on whether to alter or eliminate the policy. The Post article observes, "Perhaps ironically, the Satanic Temple will applaud if religious materials are banned because it believes strongly in the separation of church and state." 

Available on NSBA's website is a chart on distribution of religious materials that provides a compilation of federal court decisions regarding in-school distribution of religious materials and other materials from non-school entities.] 

New Jersey court hears arguments on district’s request to dismiss suit over daily recitation of Pledge of Allegiance in school

USA Today reports that Monmouth County Superior Court Judge David Bauman heard oral arguments on Matawan-Aberdeen Regional School District’s (MARSD) motion to dismiss a suit by the American Humanist Association (AHA) on behalf of a Monmouth County family challenging the inclusion of the phrase “under God” in the daily classroom recitation of the Pledge of Allegiance. AHA’s suit claims that the practice of acknowledging God in the Pledge of Allegiance discriminates against atheists, in violation of the New Jersey Constitution.

The Knights of Columbus, the American Legion, and the Becket Fund intervened in the suit in support of MARSD. Attorney David B. Rubin is representing the school district.

Rubin argued that the suit should be dismissed on several grounds, the first of which is that even though New Jersey law requires the daily recitation of the Pledge in all state schools, individual students are not required to participate. Because participation in the Pledge is voluntary, Rubin contends that the plaintiff’s claim of a civil rights violation is unfounded as there is no differential treatment of anyone by the government. “There’s not been a requirement or a prohibition from doing anything,”he said.

AHA’s attorney David Niose countered that even though students are not required to participate in the Pledge, inclusion of the words “under God” makes it divisive. “It paints one group as quintessential patriots and the other group as second-class citizens,” he said. Niose said that the Pledge differs from other school activities that some might find objectionable in that it is an exercise that is performed daily from pre-kindergarten through 12th grade.

Earlier this year, Massachusetts’ highest court ruled that daily recitation of the Pledge in school, including the phrase “under God,” did not violate that state’s laws or constitution. Niose insisted to Judge Bauman that the Massachusetts court was “simply wrong.”

Rubin, on the other hand, indicated that federal courts have not recognized the Pledge of Allegiance as a religious exercise, even though a reference to God is in it. “It’s simply a recognition of the undeniable, historical fact that religion played an important role in the formation of this country and the development of our government institutions,” Rubin said.

Source: USA Today, 11/19/14, By Kathleen Hopkins (Ashbury Park Press)

[Editor's Note: Mr.  Rubin is a member of the National School Boards Association's Council of School Attorneys (COSA). 

In August 2014, Legal Clips summarized an article in The Daily Journal reporting that a number of  patriotic and religious organizations had come to the defense of MARSD against AHA's lawsuit. The lawsuit was filed by AHA in March 2014 on behalf of  a family that wishes to remain unidentified. The suit claims that the practice of acknowledging God in the Pledge discriminates against atheists, in violation of the New Jersey Constitution.]


University Education Law Practicum files discrimination complaint against Tennessee school district with OCR

The University of Tennessee College of Law Education Law Practicum (UTCLELP) has filed a complaint with the U.S. Department of Education’s (ED) Office for Civil Rights (OCR), says WBIR.com. The complaint alleges discrimination against African American students and students with disabilities by Knox County Schools. The complaint cites data from 2012 showing that African American students are almost three times more likely to be suspended and more than 4.5 times more likely to be referred to law enforcement than their Caucasian peers.

The complaint also states that African American students with disabilities are more than six times more likely to be referred to law enforcement than Caucasian students with disabilities. In addition, it claims harsh discipline pushes students out of the educational system and often into the criminal justice system. The article notes that there have been similar complaints filed across the country, demanding that the federal government investigate school systems and enact change.

Source: WBIR.com, 11/18/14, By Staff

[Editor's Note: UTCLELP's OCR complaint form contains an attachment titled "Analyses of Disparate School Discipline and School-Based Arrests  Practices in Knox County, Tennessee." The attachment provides an analysis of ED's Civil Rights Data Collection (CRDC) and requests a comprehensive investigation by OCR into the practices described and appropriate relief to dismantle these practices.

In July 2014, Legal Clips summarized an article in The Advertiser reporting that OCR was looking into a complaint regarding discrimination against African-American students by Lafayette Parish School System (LPSS).  An OCR spokesman said, “The case focuses on whether the district discriminated against black students on the basis of race with respect to discipline practices.” ]

Fifth Circuit refuses to rehear suit over University of Texas’ use of race as a factor in its undergraduate admissions policy

According to The Texas Tribune, the full U.S. Court of Appeals for the Fifth Circuit has declined Abigail Fisher’s request to rehear her suit against the University of Texas at Austin (UT) over its use of race as a factor in the student admissions policy for applicants not admitted under the state’s top 10% law. The denial in effect upholds the July 2014 decision by a Fifth Circuit three-judge panel, which indicates that the policy passed constitutional muster. The case could now be headed back to the U.S. Supreme Court.  

Fisher, who is white, filed suit after her application for admission to UT was rejected in 2008. The case went all the way to the U.S. Supreme Court, which remanded it back to the Fifth Circuit on the grounds that the judges, in siding with the university, had not applied “strict scrutiny” and had been too inclined to take the university representatives at their word when they said that the consideration of race was a necessary component of the review process that helped the institution meet its diversity goals.

In July 2014, the Fifth Circuit, in a 2-1 decision, again upheld the use of race as a factor in UT’s admissions policy. Fisher then petitioned the Fifth Circuit to rehear the case en banc, which means with the entire court present as opposed to a three-judge panel. However, the full court, in a 10-5 vote, rejected the petition.

Fisher and her attorneys indicated that they intend to appeal to the U.S. Supreme Court. “Abby Fisher and her family are disappointed with the court’s denials for a rehearing, but remember that they have been in this posture before. This case will be appealed back to the U.S. Supreme Court,”  Edward Blum, director of the Project on Fair Representation, a legal defense foundation that has represented Fisher, said in a statement.

UT President Bill Powers said he was pleased with the ruling. The university, he said, “is committed to maintaining a student body that provides the educational benefits of diversity while respecting the rights of all students.”

Source: The Texas Tribune, 11/12/14, By Reeve Hamilton

[Editor's Note: In July 2014, Legal Clips summarized the Fifth Circuit's panel decision in the remand of  Fisher v. UT. The panel ruled that the undergraduate admissions policy of UT does not violate the Fourteenth Amendment’s Equal Protection Clause. Following the U.S. Supreme Court’s instructions, it subjected UT’s admissions policy to a rigorous “strict scrutiny” analysis. It concluded that to “deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It found that UT’s “holistic review”, in which race is considered as one of a number of factors, “is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.” ]


Maryland district deletes names of religious holidays from next year’s school calendar

The Washington Post reports that the Montgomery County Board of Education (MCBOE) has voted to eliminate the names of all religious holidays, including Christmas, Easter, Yom Kippur, and Rosh Hashanah, from the school district’s published calendar for 2015-16. The MCBOE’s 7-1 vote to remove religious holidays came in the aftermath of a request from Muslim community leaders to give equal billing to the Muslim holy day of Eid al-Adha.

Montgomery County Schools will still be closed for the Christian and Jewish holidays, as in previous years, and students will still get the same days off. The new calendar will now just reflect days the state requires the system to be closed and other days where there has historically been a high rate of absenteeism for students and staff.

Even though those days happen to coincide with major Christian and Jewish holidays, board members noted that the days are not intended to be celebrations of religious holidays, which they acknowledged that they are not legally permitted to observe.

Source: The Washington Post,  11/11/14, By Donna St. George

[Editor's Note: In October 2013, Legal Clips summarized an article in The Washington Post reporting that Muslim families in Montgomery County, Maryland were pressing the school district to close in recognition of the Islamic holy day Eid al-Adha. They pointed out that schools in the district are closed for Christmas, Good Friday, Easter, Rosh Hashanah, and Yom Kippur.

County school officials said that, legally, granting a day off requires a secular rationale, such as an impact on instruction because of a high rate of absenteeism. In 2012, the school board asked staff to examine attendance patterns on the Muslim holiday. According to officials, figures from a three year period of time indicated that Muslim holidays had little impact on attendance.

School officials did note that the district provides excused absences to students who miss classes on religious holidays.]  


South Carolina Supreme Court rules that the state’s system for funding public schools fails to satisfy the constitutional obligation for the state to provide students with “the opportunity to receive a minimally adequate education”

Abbeville Cnty. Sch. Dist. v. State of South Carolina, No. 07-065159 (S.C. Nov. 12, 2014)

Summary of Majority Opinion: The South Carolina Supreme Court, in a 3-2 split, has ruled that the state’s funding scheme for public schools does not satisfy the South Carolina Constitution’s mandate that the state provide “a system of free public schools that affords each student the opportunity to receive a minimally adequate education.” Even though the majority conceded it could not “suggest methods of fixing” the problem of inadequate education, it “can recognize a constitutional violation when [it] see[s] one.”

One of the key factors for the majority in deciding the case is the effect of poverty on student achievement. Invoking the rationale of the U.S. Supreme Court in Brown v. Board. of Education 349 U.S. 294 (1955),  the majority said, “Students in [the plaintiffs'] districts are grouped by economic class into what amounts to no more than educational ghettos, rated by the Department of Education’s guidelines as substandard.”

The majority rejected the state’s argument that the case was moot because of substantial changes to relevant facts and the law since the supreme court heard arguments in the case. It also disagreed with the dissent’s contention that the case was not justiciable because it involves an apolitical question.

With regard to the remedy for the constitutional violation, the majority declined, based on the principle of separation of powers, to provide the state legislature with a specific solution. However, it pointed to decisions from a number of other jurisdictions, e.g., New York state and Wyoming. In conclusion, it ordered  the plaintiffs and defendants to work together and return to the court, within a reasonable period of time, with a plan to address the constitutional violation that the court found, with special emphasis on the statutory and administrative pieces necessary to aid the myriad troubles facing these districts at both state and local levels.

Summary of Dissenting Opinion: Although the dissent believed that the initial school funding suit, known as Abbeville I, should be disposed of on the ground that it raised a nonjusticiable political question, it acknowledged that the South Carolina Supreme Court was obliged to resolve the case on the issue of whether the state’s funding scheme provided a “minimally adequate education.” It concluded that the trial court should have ruled that there was no constitutional violation with regard to inadequate funding of pre-school and early childhood education programs.

According to the dissent, “The proper question before the Court in Abbeville I was which branch of government is constitutionally assigned responsibility for funding and making policy decisions concerning public education. It responded, based on its reading of the relevant state constitutional provision, that the South Carolina Supreme Court’s “construction of the Education Clause in Abbeville I to require a minimally adequate education, while well intentioned, does not give rise to a legal issue that this Court is capable of resolving.”

Abbeville Cnty. Sch. Dist. v. State of South Carolina, No. 07-065159 (S.C. Nov. 12, 2014)

[Editor's Note: On November 13, 2014, Sarah Freishtat and Kirk Brown of The State reported on the decision in Abbeville County School District, which they pointed out had been litigated for 21 years. According to the article, several Republican lawmakers said they were disappointed in the ruling, while the state Democratic Party issued a statement applauding the ruling.

State Sen. Larry Martin, the Republican chairman of the Senate Judiciary Committee, said the case is "clearly a public policy issue," not a constitutional issue. He said legislators have created kindergarten programs for 4-year-olds in about two-thirds of the state's school districts. 

The South Carolina School Boards Association is finalizing a proposed school funding plan, said Scott Price, who will be the next executive director of the South Carolina School Boards Association, in a statement. He said the plan allocates funding for students based on their needs, rather than where they live.

In September 2012, Legal Clips summarized an article in The State reporting that  the five justices of the South Carolina Supreme Court had recently heard oral arguments addressing several issues, including teacher quality, school district sizes, school bus numbers, the percentage of a district’s budget that goes to administrators’ salaries, and contemplated whether the court should set its own standards for the state’s public education system. The oral arguments were the latest chapter in a 20-year lawsuit brought by some of the state’s poorest school districts.  The Editor's Note to the article indicated that the case was back on track after a four year silence by the South Carolina Supreme Court after hearing oral arguments in 2008.

The National School Boards Association, along with a number of other education groups, filed an amicus brief in support of the school districts.] 


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