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Federal district court in Florida rules school officials and police did not violate students’ Fourth Amendment search and seizure rights, Fourteenth Amendment equal protection rights or First Amendment speech rights by subjecting them to breathalyzer tests before allowing them to enter the prom

Ziegler v. Martin Cnty. Sch. Dist., No. 14-14221 (S.D. Fla. Mar. 2, 2015)

Abstract: A federal district court in Florida has ruled that school officials and local law enforcement did not violate students’ Fourth Amendment search rights when sheriff’s deputies searched a bus that the students had used for transportation to the prom. It also concluded that the school district’s breath test policy did not violate students’ Fourth Amendment search rights nor did the conducting of breathalyzer tests violate their Fourth Amendment search rights. In addition, the court held that the detention of the students in order to conduct the breathalyzer tests did not violate the students’ Fourth Amendment seizure rights.

The district court rejected the students’ equal protection claim that the school district’s de facto policy that all students attending prom were subject to a vehicle search and/or breath test was applied in a discriminatory manner to students arriving to the prom in limos or buses. It also held that the school officials did not violate the First Amendment speech rights of two students suspended for using profanity while waiting to be tested. Finally, the court concluded the students’ failure to train claim, with regard to the law enforcement officers, was unsuccessful because the students had failed to show any violation of their constitutional rights.

Facts/Issues:  On May 3, 2014, Jensen Beach High School ( JBHS), which is in the Martin County School District, held its senior prom. Each student who purchased a ticket for the prom was required to sign the Martin County School Board’s zero tolerance form for off campus activities, which states:

Jensen Beach High School, along with Martin County School District, has a ZERO TOLERANCE POLICY for alcohol, drugs, or tobacco. Any form of tobacco, alcoholic beverages, or drugs is not permitted on property owned or controlled by the Martin County School District or at any school-sponsored activity, including activities conducted outside of Martin County. Students and guests attending such activities and events may be subject to a breath test. Any form of profanity is strictly prohibited. School policies are enforced.

Please be advised that failure to uphold these rules will result in immediate disciplinary action and possible recommendation for expulsion.

A group of JBHS students arrived at the school’s prom between 10:15 P.M. and 10:36 P.M. aboard a chartered “party bus.” JBHS Dean of Students Lori Kane informed the approximately 37 students they would not be permitted to enter the prom until the bus was inspected. Martin County Sheriff’s Deputy Norm Brush asked the bus driver for consent to search the bus.

The driver allegedly gave Brush permission to search the bus. During the search, Brush discovered an empty champagne bottle inside of the bus. The driver told Brush that the champagne bottle belonged to the students. Each of the students, including plaintiffs, denied knowledge and/or ownership of the champagne bottle.

The students were informed that they would be required to take and pass a breathalyzer test before entering the Prom. Kane asked JBHS Assistant Principal Iuliucci, who had already left to go home, to return to the prom site because she was the only JBHS official certified to administer breathalyzer tests. Iuliucci arrived approximately 45 minutes later and administered breathalyzer tests. All the students passed the tests and were permitted to enter the prom. However, by that time the prom, which ended at midnight, was over.

During the wait for the tests, two students, Kendell McCormick and Kaelyn Drazkowski, were heard by school officials using profanity and were later suspended from school for three days.

A number of students on the “party bus” filed suit in federal district court against Martin County School District (MCSD) and the Martin County Sheriff’s Office (MCSO). They alleged: that the search of the bus and the conducting of the breathalyzer tests violated their Fourth Amendment search rights; that detaining the students in order to conduct the tests violated their Fourth Amendment seizure rights; that MCSD’s de facto policy that all students arriving at the prom are subject to a vehicle search and/or breathalyzer was applied in discriminatory manner to students arriving in limos or buses in violation of the students’ Fourteenth Amendment equal protection rights; and,that the Martin County Sheriff’s Office had failed to properly train its police officers. In addition, the two students suspended for using profanity alleged that their First Amendment speech rights were violated.

MCSD and MCSO filed motions for summary judgment.

Ruling/Rationale: The district court granted defendants’ motions for summary judgment. It first addressed the students’ claim against MCSD and MCSO that the search of the bus violated their Fourth Amendment right to be free from unreasonable searches. The court disposed of the factual dispute about whether the students continued to have a reasonable expectation of privacy as to the interior of bus on the ground it was immaterial because “[e]ven assuming Plaintiffs had a legitimate expectation of privacy in the cabin of the bus at the time of the search, the bus driver validly consented to the search.” It found that the fact that the driver was a third party did not affect the validity of the consent because U.S. Supreme Court precedent held that “a third party’s consent is valid if he has mutual use of the property, with joint access to, or control of, the area for most purposes.”

The district court also rejected the students’ argument that the driver’s alleged oral statement and hand gesture are inadmissible hearsay. It stated: “The bus driver’s statement ‘go ahead,’ and gesture waiving Deputy Brush onto the bus, are indications of consent that amount to verbal acts, and as such, are not hearsay.” Because the consent was given voluntarily by the driver, who “maintained joint access and immediate control over the vehicle,” and there were no allegations that the students objected to the driver’s consent, the court concluded that Deputy Brush’s search of the bus passed Fourth Amendment muster.

Turning to the claim alleging that the breath test was unconstitutional, the court rejected the students’ attempt to break the claim down into two separate subsections: (1) the breath test policy is unconstitutional; and (2) even if the policy is constitutional, it was unconstitutional as applied to the students. It said that it was “unable to discern any substantive difference between the two subsections” because “these subsections both attack the breath tests as unconstitutional searches under the Fourth Amendment.”

Because the search took place in the school setting, the district court applied the standard established in New Jersey v. T.L.O., 469 U.S. 325 (1985). Under the T.L.O. standard a search’s reasonableness depends on whether it was justified at its inception, and whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. It asserted that typically a search is justified at its inception if a school official has reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. It also noted that “searches are reasonably related in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The district court found that in the instant case, the defendants had reasonable suspicion for believing the students had consumed alcohol in violation of school policy (and probably state law) based on Deputy Brush’s discovery of the champagne bottle on the bus and the driver’s statement that the bottle belonged to the students. As a result, conducting the breathalyzer tests was “reasonably related to the objective of determining whether [the students] were intoxicated prior to entering the Prom because the breathalyzer test specifically tested for the presence of alcohol in Plaintiffs’ bloodstream.” It also found “the breath test was not excessively intrusive in light of [the students’] age and sex because the test merely required [the students] to exhale.”

The district court next took up the issue of whether detaining the students in order to conduct the breathalyzer tests violated the students’ Fourth Amendment right to be free unreasonable seizures. It pointed to the U.S. Court of Appeals for the Eleventh Circuit, which has jurisdiction over federal district courts in Florida, which has held that the reasonableness standard articulated in New Jersey v. TL.O. . . [applies] to school seizures by law enforcement officers.” Because the students were the non-moving party on the motions for summary judgment, the court presumed that they had been seized.

However, just as the court had concluded that the breath tests had satisfied the T.L.O. standard, it also concluded that the defendants had a reasonable suspicion of student alcohol consumption justifying the requirement that each student undergo a breathalyzer test before being admitted to the prom. It pointed out that any delay in conducting the tests due to the wait for the assistant principal to return was attributable to the students who arrived at 10:15 P.M. when the prom tickets expressly stated that doors would close at 10:00 P.M. It also stressed that “the amount of time it took to administer all of the breathalyzer tests to the students was reasonable.” The court stated: “l find that Defendants’ decision to detain Plaintiffs until all of the breath tests were administered was reasonable under the circumstances.”

Turning to the equal protection claim, the district court concluded:

[The students] have failed to articulate a facial challenge to the policy. To the extent [the students’] claim that on the night of the Prom the policy was applied in a discriminatory matter, [the students] fail to provide any evidence to demonstrate that Defendants instituted a policy, formally or informally, that only buses or limos arriving at prom were searched for evidence of alcohol and/or students arriving on buses or limos were given breath tests.”

The district court then took up the First Amendment speech claim. It rejected the two students’ argument that school officials lacked the authority to discipline them for the alleged use of profanity because the speech occurred off-campus. The court stated that in Morse v. Frederick, 551 U .S. 393, 410 (2007), the Supreme Court “made clear that school officials have the authority to regulate student speech at an off-campus, school sponsored event.” It pointed out that because the profanity occurred at a school-sponsored event, i.e., prom, school officials were justified in regulating such speech.

Lastly, the district court concluded the students’ failure to train claim, against the law enforcement officers, was unsuccessful because the students had failed to show any violation of their constitutional rights.

Ziegler v. Martin Cnty. Sch. Dist., No. 14-14221 (S.D. Fla. Mar. 2, 2015)

[In May 2014, Legal Clips summarized an article in TCPalm reporting that a group of students who were barred from entering Jensen Beach High School’s (JBHS) prom until they were tested for alcohol consumption had filed suit in federal court against Martin County School District (MCSD). Because of the length of time the testing took, none of the students made it inside the school to attend the prom.] 

Sua Sponte: NSBA joins with California School Boards Association in filing friend of the court brief urging Ninth Circuit not to allow the automatic awarding of attorney’s fees and costs to prevailing parties in IDEA cases

The National School Boards Association (NSBA) has joined with the California School Boards Association (CSBA) in filing an amicus (friend of the court) brief with the U.S. Court of Appeals for the Ninth Circuit arguing that courts should award attorney’s fees based on equitable considerations and not automatically to parties that achieve no real change in their legal position. The CSBA/NSBA brief makes two main arguments: (1) that the federal district court, in changing its fee analysis, backtracked from the correct legal standard and shifted to an “automatic” fee grant”; and (2) “the district court’s interpretation and application of fee-shifting imposes significant additional costs on school districts already overburdened by the enormous expense of providing special education.”

In urging the Ninth Circuit to reject allowing the “automatic” grant of fees, the brief contends that attorney fee awards are not automatic once a party is determined to be a prevailing party. It also asserts that the district court failed to properly consider the degree of success achieved by the “prevailing party” in determining the size and appropriateness of the award of attorney’s fees and costs. With regard to the financial burden imposed on school districts, the CSBA/NSBA asserts that litigation costs, including attorney fee awards, are a significant additional burden under the IDEA. Their brief also stresses that Congress has yet to appropriate the promised level of funding for special education and related services that school districts must provide under the IDEA.

In NSBA’s press release announcing filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “A school district’s responsibility to pay attorney’s fees under the IDEA should be determined in keeping with existing fairness principles and common sense.” He continued, “School districts’ limited financial resources must be used to advance their educational mission, not fund litigation costs.”

CSBA CEO & Executive Director Vernon M. Billy added, “We are urging the Ninth Circuit to follow established law. School districts should not have to fear paying unwarranted attorneys’ fee awards when making educational decisions about placements and services for children with disabilities.”

U.S. Supreme Court rules former female employee has a cause of action under the Pregnancy Discrimination Act based on disparate treatment

Reuters reports that the U.S. Supreme Court, in a 6-3 decision, agreed with a former driver for United Parcel Service ( UPS) by giving her another chance to argue that the package delivery company discriminated against her when it refused to accommodate her request for light duty while she was pregnant. The Court’s majority revived Peggy Young’s discrimination claim against UPS, vacating a U.S. Court of Appeals for the Fourth Circuit three-judge panel’s ruling upholding the federal district court’s dismissal of Young’s claim, and remanding the case to the Fourth Circuit panel.

The case focused on whether, under a federal law called the Pregnancy Discrimination Act, employers must provide accommodations for pregnant workers who may have physical limitations on tasks they can perform. Young, who worked at a Maryland facility, became pregnant in 2006. She made her request for an accommodation after a midwife advised that she not be required to lift packages weighing more than 20 pounds (9 kg).

Writing for the majority, liberal Justice Stephen Breyer said the lower court failed to consider the effects of UPS policies that covered non-pregnant workers who might have disabilities, injuries or otherwise might need accommodations. Breyer said there is a “genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.” Justice Antonin Scalia, joined by Anthony Kennedy and Clarence Thomas, wrote a dissenting opinion accusing the court majority of coming up with “an interpretation that is as dubious in principle as it is senseless in practice.”

Sam Bagenstos, Young’s attorney, said the court “made clear that employers may not refuse to accommodate pregnant workers based on considerations of cost or convenience when they accommodate other workers.” UPS, responding to the decision, said in a statement that it was “pleased that the Supreme Court rejected the argument that UPS’s pregnancy-neutral policy was inherently discriminatory.” In October 2014, UPS stated that as of  January 2015 it would begin providing accommodations for pregnant women.

The impact of the ruling could be limited in part because a 2008 amendment to the Americans with Disabilities Act could now protect women in Young’s situation. The U.S. Equal Employment Opportunity Commission has said employees must offer accommodations to pregnant women just as they do for other workers with similar physical limitations.

Source: Reuters, 3/25/15, By Lawrence Hurley

[Editor's Note: Chief Justice Roberts and Justices Gingsburg, Sotomayor and Kagan joined Justice Breyer's majority opinion. Justice Alito filed an opinion concurring in judgment. Justice Scalia, joined by Justices Kennedy and Thomas, filed a dissenting opinion. Justice Kennedy filed a separate dissenting opinion. In addition to the Reuters report, on March 26, 2015, Lizbeth West of JD Supra provided a summary of the Supreme Court's decision in Young v. UPS Inc.

In August 2014, Legal Clips reported  that on eeoc.gov,, the U.S. Equal Employment Opportunity Commission (EEOC) had recently issued “Enforcement Guidance on Pregnancy Discrimination and Related Issues,” along with a Question and Answer document about the guidance and a Fact Sheet.  This is the first comprehensive update of the EEOC’s guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject. The EEOC states that this guidance supersedes that document and incorporates significant developments in the law during the past 30 years. In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.]

 

Michigan district decides to ban weapons from its schools, even if individual has permit to carry concealed weapon

Ann Arbor Public Schools (AAPS) has issued a statement banning weapons from school property, says Mlive. The school board is considering policies to keep concealed pistol license holders from openly carrying guns on campus, although it is legal in Michigan. Such policies could make Ann Arbor schools either weapon- or disruption-free zones.

The board believes weapons disrupt the learning environment for students and staff both in school and at school-sponsored events, according to the statement. “The Ann Arbor Public Schools has experienced disruptions for students, staff, and other participants when individuals open carry on district property, and as a result, AAPS will not allow weapons on district property, at events on campus or any school sponsored activities,” the district stated.

Although the ban will not apply to law enforcement officers, school board president Deb Mexicotte said that if a visitor brings a gun on school property, AAPS administrators will call the police and ask the visitor to leave. AAPS officials acknowledge a weapons-free policy could lead to a lawsuit. Another Michigan school district is already dealing with such a lawsuit. Earlier this month, a Clio Area School District (CASD) parent filed suit against CASD claiming he was denied access to an elementary school while trying to pick up  his daughter because he was openly carrying a pistol.

AAPS Superintendent Jeanice Swift also addressed the controversy in her blog. She stated that the issue is not about the Second Amendment, state law or politics, but keeping students safe. “As a veteran educator, I am astounded by the incongruence of allowing the legal open carry of weapons into our schools, particularly when that is the very threat we have worked so diligently to prevent,” she wrote. “We have long had a zero-tolerance approach for any student or staff who would bring a firearm to school. I know personally that the presence of guns in schools is an alarming prospect for our children and for the adults who have responsibility for them. Seeing guns on strangers is scary and unsettling for our children as it is for the adults charged with keeping students safe.”

Source: Mlive, 3/18/15, By Lindsay Knake

[Editor's Note: In March 2015, Legal Clips summarized an article in Mlive reporting that Kenneth Herman, whose daughter attends  Edgerton Elementary School (EES), filed suit against CASD in Genesee County Circuit Court claiming that the school district violated his right to openly carry a firearm into his daughter’s school. The suit alleges that Herman attempted to pick his daughter up from school at EES on multiple occasions and that he was denied access because he was carrying a pistol.] 

 

Legal Clips on hiatus from March 18 to March 25

Legal Clips will be taking a brief hiatus while staff attends the National School Boards Association’s annual conference in Nashville, Tennessee. We will return on Wednesday, March 25, with fresh news from the world of school law. Thanks again to our patient and loyal subscribers.

Alabama Supreme Court upholds the constitutionality of state’s tuition-tax credit law

oanow.com reports that the Alabama Supreme Court has a school-choice law that gives tax credits to help some families pay for private school. The court concluded the law does not violate restrictions on giving public funds to private, religious schools because the tax credits go to parents and to scholarship program donors, not to the schools. They also said legislators acted legally when they passed the bill the same night that it was introduced in a conference committee.

Alabama House Speaker Mike Hubbard said, “ The Supreme Court Ruling on the Alabama Accountability Act is a win for parents, a win for students, and a win for school choice in the state of Alabama. I look forward to hearing even more success stories as this law continues to work in our state. We are committed to expanding school choice in Alabama until every child has the chance at a quality education regardless of their income or zip code.” State Senate President Pro Tem Del Marsh echoed Hubbard’s comments.

The Accountability Act offers income-tax credits — a dollar-for-dollar reduction on tax bills — to help parents pay for private school if their child is currently enrolled in a public school designated as failing. Individuals and corporations can also get tax credits for donations to scholarship programs that help families pay for private school. Alabama Attorney General Luther Strange said the lengthy court decision “rejected all claims against the act and thereby handed a victory to parents wishing more flexibility for their children’s education.”

The Accountability Act prioritizes scholarships for children enrolled in public schools designated as failing by the law. However, they can offer the scholarships to other students if they have leftover funds. The Alabama Opportunity Scholarship Fund, the largest scholarship-granting organization and a group started by former Gov. Bob Riley, has awarded 2,830 scholarships this school year. About half went to students zoned for schools designated as failing, and the others to low-income students zoned for other public schools.

Source: oanow.com, 3/2/15, By Staff

[Editor's Note:  The 145 page majority opinion reversed Montgomery County Circuit Court's decision holding that the Alabama Accountability Act is unconstitutional. In May 2014, Legal Clips summarized an article in the Montgomery Advertiser reporting that Montgomery County Circuit Court Judge Eugene Reese had ruled that the Alabama Accountability Act (AAA) is unconstitutional and issued an injunction barring further application of the law. The law, enacted in 2013, allows parents of students in failing schools to apply for tax credits to use for private school tuition. Businesses and individuals can also donate to scholarship funds for tuition in exchange for tax credits.]

California court grants district temporary restraining order removing special ed student from elementary school because of violent behavior

Courthouse News Service reports that Monterey Superior Court Judge Efren Iglesia granted Carmel Unified School District’s (CUSD) motion for a temporary restraining order removing a nine year-old special education student from Carmel River School on the grounds that the student’s “dangerous, escalating and uncontrollable behavior poses a clear and imminent danger to the staff, students and defendant.” The student has been placed in a Monterey County Office of Education program in Spreckels, for students who are emotionally disturbed, should the parents decide to return him to school.

According to CUSD’s legal complaint  the student’s behavior has become “increasingly unmanageable.” He qualifies to receive special education services due to attention deficit hyperactivity disorder and other learning disabilities. The complaint adds, “He has amassed a 58-page disciplinary record at the District, during just 21 instructional months.” CUSD asserts the student’s behavior has escalated from threats of violence to actually carrying out such threats.

CUSD says the Spreckels program is specifically designed for students with emotional disturbances. There are four adults and just 10 children, a mental health therapist on site at all times, and a safe room. However, the student’s mother contends the Spreckels program is inappropriate for her son. “I’m willing to home-school him,” she told the judge. “I’ve observed the Spreckels program. … It will hurt him. It does not meet his needs. I was willing to work with them [the school district], but then they did this. I won’t send him there.”

CUSD’s attorney, Daniel Osher of Lozano Smith, and CUSD’s chief student services officer Heath Rocha appeared fairly pleased with that development and quickly acquiesced to the mother’s desire to home-school. “Home school is always an option for parents,” Rocha told the judge.

According to the complaint, the parents have not been cooperative in the past. “For a significant period of time, they refused to allow the district to provide mental health therapy to defendant. They have undermined the district’s authority, conveying to defendant that he does not have to follow staff directives. … This conduct has exacerbated the instability and danger of defendant’s presence at Carmel River School,” the complaint states.

In granting CUSD’s motion, Judge Iglesia said, “I have learned that parents’ views of their children sometimes do not comport with reality. With the materials I have seen here, I think there is sufficient reason to grant the application – and that’s what I’m doing.”

Source: Courthouse News Service, 3/13/15, By Jon Chown

[Editor's Note: On the other side of the coin, in July of 2012, Legal Clips summarized an an Associated Press article in The Republic reporting that the Southern Poverty Law Center (SPLC), Southern Disability Law Center, and Disability Rights Mississippi had filed suit in federal court against the Mississippi Department of Education (MDE), alleging that MDE had not done enough to solve special education problems in Jackson Public Schools (JPS). The suit alleged that MDE allowed JPS to get away with doing nothing to fix problems the groups cited in a previous 2010 complaint with the state. The original administrative complaint to MDE centered on claims that JPS was overly punitive toward special education students, suspending them or sending them to the district’s alternative school.] 

 

ACLU files suit against Ohio district on behalf of teacher who claims he was fired for posting his vegan beliefs on Facebook

According to cleveland.com, the American Civil Liberties Union of Ohio (ACLU-OH) has filed suit in federal court against Green Local School District (GLSD) on behalf of former teacher Keith Allison. The suit alleges that Allison was terminated because a Facebook post espousing his vegan beliefs was offensive to locals working in the dairy industry.

The ACLU-OH claims Allison was removed as a tutor at an elementary school in August 2014 after school administrators found posts he made over the summer that showed a picture of baby calves in small crates. The post stated: “[T]he cruelty of separation, loneliness, an infant slaughter lingers inside each glass of cow’s milk. Your voice can change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.”

The suit alleges that GLSD policy prohibits teachers from speaking about issues if members of the community disagree with their views. The ACLU-OH contends the policy is unconstitutional. The suit seeks to have the policy repealed. It is also asking for back pay, damages and that Allison be reinstated to his old position.

(According to the ACLU of Ohio Legal Director Freda Levenson after she sent a letter to GLSD’s school board in December 2014 requesting Allison’s reinstatement and issue an apology. Levenson said  the ACLU-OH received a small settlement offer in response. “It was an inadequate offer, a small amount of money that didn’t cover the back pay and didn’t even begin to address the constitutional infringement of his rights,” Levenson said.)

The lawsuit says that once the school district’s administration found out about the post, Superintendent Judy Robinson and a school principal met with him, and Robinson said the community “had a large number of dairy farmers, and that teachers needed to be careful not to offend the local agricultural industry.” They told him they would be lowering his pay for the hours worked and would dock his pay and retroactively pay him the same rate as a substitute teacher, according to the suit. Later that month, the school board voted to not hire him for the school year, and that the only basis for that was his vegan Facebook posts, the lawsuit says.

Levenson said free-speech rights for public employees are “a well-developed principle of law.” “Public employees don’t lose their First Amendment rights by virtue of their job,” she said.

Source: cleveland.com, 3/5/15, By Eric Heisig

[Editor's Note: In October 2012, Legal Clips summarized  an Associated Press article in the The Star Press on wlfi.com reporting that the head of the Muncie Teachers Association (MTA) is warning members about using social media to communicate with students. According to MTA President Pat Kennedy, “It can be a very slippery slope.”

Also June 2012, Legal Clips summarized an article in The Hartford Courant reporting that the American Civil Liberties Union of Connecticut (ACLU-CT) had urged the Manchester school board to reject a proposed policy that would regulate professional and personal use of social media sites. ACLU-CT maintains the policy would restrict speech that is clearly protected by the First Amendment, “imposing a set of regulations that are overly broad and impermissibly vague.” In a letter to School Board Chairman Chris Pattacini, the ACLU-CT contends that the proposed policy violates the U.S. Constitution.] 

 

New York City public schools to officially observe two Muslim holy days

According to The New York Times, New York City Mayor Bill de Blasio has announced that the city’s public schools will be closed in observance of the Muslim holy days of Eid al-­Fitr and Eid al-­Adha. New York City will be the first major metropolitan school system in the nation to observe the holy days. However, a number of school districts nationwide, including municipalities in Massachusetts, Michigan and New Jersey, have added the Muslim holy days to their school calendars.

At least six school districts nationally, including Cambridge, Mass.; Dearborn, Mich.; Burlington, Vt.; and Paterson and South Brunswick, N.J., have granted days off for the major Muslim holidays. Many more districts recognize the holidays in other ways, such as noting them on their school calendars or granting excused absences for observant students. Even so, some school districts have experienced backlash. In November 2014, education officials in Montgomery County, Md., reacted to a local campaign to recognize the Muslim holidays by deciding to eliminate all mention of religious holidays on their 2015­16 school calendar, including Rosh Hashana and Christmas. Instead, those days would simply be marked as days off.

Mayor de Blasio’s predecessor, Mayor Michael R. Bloomberg, rejected the idea, saying that students needed more time in the classroom, not less. Mr. Bloomberg also expressed concern that parents of different faiths would need to arrange child care on days that school was not in session. Mr. de Blasio had no objections as he had pledged as a candidate in 2013 to close schools on the two Muslim holy days. On Wednesday, the mayor said that the changes would take effect in the coming academic year.

The mayor has also promised to close schools on the Lunar New Year, a cherished cause of Asian-­American groups. On Wednesday, he said only that he was “going to keep working on that,” noting that he and schools officials had to contend with a packed academic calendar. State Senator Daniel L. Squadron, a Democrat who represents Chinatown in Manhattan, said that while he was pleased with the new policy on Muslim holidays, “it’s critical that the Lunar New Year have the same result.” The mayor is also facing pressure from American Indian  groups that want schools to be closed for the Hindu festival of Diwali.

Source: The New York Times, 3/4/15, By Michael M. Grynbaum and Sharon Otterman

[Editor's Note: As the Times article noted in November 2014, Legal Clips summarized an article in The Washington Post reporting that the Montgomery County Board of Education (MCBOE) had 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.]

 

NSBA criticizes U.S. Supreme Court decision in Perez v. Mortgage Bankers Ass’n arguing that ruling allows agencies to use informal rulemaking, such as Dear Colleague Letters without the check of notice and comment

Education Week’s School Law Blog reports that the National School Boards Association (NSBA) has criticized the U.S. Supreme Court’s decision in Perez v. Mortgage Bankers Ass’n.

In Perez v. Mortgage Bankers Ass’n, No 13-1041, the Supreme Court held that under the Administrative Procedures Act (APA) interpretive rules are exempt from the notice-and-comment procedures that apply to formal regulations put forth by an agency related to federal statutes. The NSBA, which had  joined in with other local government groups in filing an amicus brief against the federal government, says the decision could embolden the U.S. Department of Education (ED) to exert authority through “dear colleague” letters and other less formal guidance.

NSBA Deputy General Counsel Naomi Gittins said, “‘Interpretive rule’ really has no definition.” She added, “The power has definitely shifted toward agencies.” Gittins pointed out that the APA’s notice-and-comment requirements give interested parties, such as states and school districts, the opportunity to review and weigh in on federal policies that can have broad implications. In the amicus brief filed on the side of the mortgage-bankers group in Perez, the NSBA did not cite any ED interpretive rules as illustrative of its concerns. (It did cite a Labor Department interpretation that required some school districts to pay overtime to school staff members who volunteered to coach school athletic teams.)

Gittins said there was a recent example of an ED “Dear Colleague Letter” (DCL)  that the NSBA has found problematic. In November 2014, the ED issued an informal guidance on how school districts must provide effective communication for students with hearing, vision, or speech disabilities. The Frequently Asked Questions (FAQ) document, that accompanied the DCL, which was issued by the ED’s Office for Civil Rights and Office of Special Education and Rehabilitative Services (OSERS), along with the U.S. Department of Justice (DOJ), endorses the 2013 decision by the U.S. Court of Appeals for the 9th Circuit, in K.M. v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493 (2014), which indicates that the Americans with Disabilities Act of 1990 requires, in some instances, that one-on-one transcription services be provided to a student with a communications disability.

In a March 2015 letter to OCR, OSERS and DOJ, NSBA said that the informal guidance (DCL/FAQ) “is a misplaced statement of the law” that threatens to interfere with procedures under the Individuals with Disabilities Education Act, and “will burden schools administratively and financially.” Gittins pointed out that from NSBA’s perspective, the guidance “is changing the IDEA and ADA ballgame.” She said that even if the Education Department elects to avoid the full-blown notice-and-comment requirements outlined in the APA, it could do a better job of reaching out for input from interested parties on less formal guidance. “When they’re issuing these ‘Dear Colleague’ letters,” she said of Education Department officials, “we encourage them to reach out to us.”

Source: Education Week, 3/11/15, By Mark Walsh

[Editor's Note: On March 9, 2015, Legal Clips summarized the U.S. Supreme Court's unanimous decision in Perez v. Mortgage Bankers Ass'n holding that significant changes to definitive interpretive rules are subject to notice and comment requirements. Although all nine justices concurred in the judgment, Justice Alito wrote a separate opinion concurring in part and concurring in the judgment. Justice Scalia and Justice Thomas filed opinions concurring in the judgment. Justice Sotomayor, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer and Kagan, spoke for the Court. 

On March 5, 2015, Legal Clips published a Sua Sponte item reporting  that NSBA General Counsel Francisco M. Negrón, Jr. had sent a letter to Catherine E. Lhamon, Assistant Secretary for the Office for Civil Rights (OCR) U.S. Department of Education; Vanita Gupta, Acting Assistant Attorney General Civil Rights Division U. S. Department of Justice (DOJ); and Michael K. Yudin, Acting Assistant Secretary Office of Special Education and Rehabilitative Services (OSERS) U.S. Department of Education, responding to guidance issued in November 2014 by OCR in the form of a “Dear Colleague Letter” (DCL) on the subject of the Americans with Disabilities Act’s (ADA) Title II “effective communication” regulation’s interplay with the Individual with Education Act’s (IDEA) free appropriate public education (FAPE) requirement.] 

 

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