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Florida federal district court rules individual failed to state valid free speech and equal protection claims based on board’s chairperson and board’s attorney interrupting his comments during an open board meeting

Seegmiller v. School Bd. of Collier Cnty., No. 15-87 (M.D.Fla. Jun. 7, 2015)

Abstract: A federal district court in Florida has ruled that a local Florida school board and its chairperson did not violate the plaintiff’s First Amendment free speech rights or his Fourteenth Amendment equal protection rights when both the chairperson and the board’s attorney interrupted the plaintiff during the time he was allotted to speak at a board meeting. The court rejected the free speech claim against the board based on the chairperson’s actions because the board, as an employer, cannot be held vicariously liable under § 1983 for its employee’s actions. It also rejected the free speech claims based on board policy because the court found the plaintiff had not adequately pleaded municipal liability under § 1983. Lastly, the district court rejected the free speech claim against the chairperson in her official and individual capacities as redundant of the claims in the first count of the suit seeking to impose vicarious liability. In addition, the district court dismissed the equal protection claims based on the “class of one” theory, concluding that the plaintiff failed to identify any similarly situated individual.

Facts/Issues: Cory Seegmiller, a resident of Collier County, Florida, attended the Collier County School Board’s (CCSB) public meeting on January 20, 2015, to address CCSB for alleged improprieties existing in the school district, e.g. the board allegedly misusing their power and permitting parents to choose the school district’s curriculum and textbooks.

CCSB gave Plaintiff three minutes to speak at the meeting. However, Kathleen Curatalo, CCSB’s chairperson, “repeatedly and frequently” interrupted Seegmiller. Curatalo apparently objected when he began to raise personal attacks against school board members, and she instructed him to keep his discourse to substantive issues.

Seegmiller objected to the interruptions, citing his free speech rights under the U.S. Constitution’s First Amendment. At some point during Seegmiller’s allotted time, the CCSB’s attorney also intervened to reiterate that the board was not censoring his speech and that he had to stick to substantive issues, and not attack the board members personally. Because of the interruptions, Seegmiller believed he was denied a reasonable opportunity to express himself on matters of community interest.

Seegmiller filed suit in federal district court under § 1983 against CCSB and Curatalo, in her official and individual capacities. The First Amended Complaint sets forth five counts based on the U.S. Constitution’s First and Fourteenth Amendments. He also included two counts based on state law. CCSB and Curatalo filed a motion to dismiss the suit on the ground it failed to state a claim upon which relief may be granted.

Ruling/Rationale: The district court granted the motion to dismiss all of the federal law claims. It also declined to exercise supplemental jurisdiction on the state law claims, dismissing them without prejudice so they can be refiled in a state court. The district court stressed that the focus of Seegmiller’s suit was that CCSB and Curatalo had violated his free speech rights. It rejected his free speech claim against CCSB based on Curatalo’s actions at the meeting. The court concluded that CCSB could not be “held vicariously liable under § 1983 for injuries caused solely by its employee.”

The district court also found Seegmiller’s claim of municipal liability based on board policy flawed. It concluded he had failed to plead municipal liability under § 1983 adequately. It stated: “The First Amended Complaint lacks factual allegations to support any finding that the Board’s policy was a deliberate indifference to his First Amendment rights, or that the policy motivated the alleged infringement on his free speech rights.” In addition, the court found the claim against Curatalo in her official and individual capacities as redundant of the claims in the first count of the suit seeking to impose vicarious liability.

The district court then quickly disposed of the equal protection claims based on the “class of one” theory, finding the claims fatally flawed because Seegmiller had failed to plead that he was treated differently from other similarly situated individuals. It pointed out that he had failed “to identify any similarly situated comparator, and the law is clear the he must do more than assert that Defendants treated some other unidentified individuals better than him.”

Seegmiller v. School Bd. of Collier Cnty., No. 15-87 (M.D.Fla. Jun. 7, 2015)

[Editor’s Note: In May 2010, Legal Clips summarized a decision by the New Jersey Supreme Court in Besler v. West Windsor-Plainsboro Reg. Sch. Dist. holding that a school board president’s decision to cut off a parent’s remarks during the public comment period of a board meeting, based on the content of the parent’s remarks, violated the parent’s free speech rights. The supreme court also held that, for purposes of imposing municipal liability on the school district under § 1983, the board’s president was acting as a final policymaker while presiding over the public comment period of the board meeting. In addition, it found that the jury’s award of $100,000 in damages to the parent for pain and suffering was excessive.]

Sua Sponte: NSBA issues guide on the impact of Obergefell same-sex marriage decision on school districts

The National School Boards Association (NSBA), along with two other key education groups, has issued a guide, titled “Same Sex Marriage – What the Obergefell Decision Means for School Districts,” that discusses the legal impact of the U.S. Supreme Court’s decision in Obergefell v. Hodges on local school board policies. In Obergefell, the Supreme Court held that the Fourteenth Amendment guarantees the right of individuals to enter into same-sex marriages. The ruling requires all states to recognize and license marriages between two people of the same-sex.

The purpose of the NSBA guide is to answer questions that school districts and school personnel may have in their efforts to understand the decision and comply with its provisions. In NSBA’s press release announcing issuance of the guide, NSBA Executive Director Thomas J. Gentzel stated, “[a]s the nation’s largest collective employer with nearly 6.2 million employees, the ruling in Obergefell v. Hodges is a landmark decision that will impact school district employment policies and practices.” He added, “Through our legal advocacy experts and case analysis, NSBA offers state-of-the-art resources to help guide school districts on appropriate implementation of the law.”

The guide was developed in partnership with the National Education Association (NEA) and the School Superintendents Association (AASA) and is the latest resource released to help school districts respond to the changing legal environment on same-sex marriage. It covers a variety of issues that school leaders may encounter related to the court decision’s impact on employee benefits, such as health insurance, retirement benefits, personal leave, collective bargaining agreements, and other areas of employer-employee relations. “School superintendents are aware of their responsibility to ensure that employee policies and benefits apply equally to all employees, including individuals in same-sex marriages,” said Daniel A. Domenech, AASA Executive Director. “Identifying potential questions that may arise from school districts’ efforts to comply with the provisions, and offering answers to these questions is a timely and important service that our organizations needed to provide.”

Lily Eskelsen Garcia, NEA President, said, “NEA is pleased to partner with the National School Board Association to provide guidance and resources on this important issue. On behalf of our members—and the students they serve—we applaud the court’s historic decision, and we are grateful that all of our educators, regardless of whom they are married to, will be assured personal and economic well-being.”

On June 26, 2015, Legal Clips published a summary of the Supreme Court’s decision in Obergefell. The Court, in a 5-4 decision, ruled that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Chief Justice Roberts, joined by Justices Scalia and Thomas, filed a dissenting opinion. Justice Scalia, joined by Justice Thomas, filed a dissent. Justice Thomas, joined by Justice Scalia, filed a dissent. Justice Alito also filed a dissent.

Florida district’s board to consider proposal to provide 30 consecutive minutes of recess daily in order to settle suit over providing physical education

The Bradenton Herald reports that Manatee County School District’s  (MCSD)proposal that elementary school students receive 30 consecutive minutes of recess daily will be presented to the Manatee County School Board (MCSB). If MCSB approves the proposal, it will result in the settlement of a suit against the school district over providing physical education.

The elementary school policy on physical education will require physical education to be offered for 30 consecutive minutes any day it is on the schedule. The policy complies with state statute, which requires districts to offer 150 minutes of physical education per week. “This is helping us move in the right direction,” Superintendent Diana Greene said.

The lawsuit, filed by parent Kate Smith last fall, has not been formally settled, but Greene said she met with Smith who seemed satisfied with the change. Smith’s lawsuit alleged that the district with not meeting state requirements.

Once the policy is adopted, it will render Smith’s lawsuit moot, Greene said. However,  Smith still maintains  that there is a difference between physical education and unstructured play time or recess. “This settles the lawsuit, but doesn’t settle the issue,” Smith said.

Source: Bradenton Herald, 7/28/15, By Meghin Delaney

[Editor’s Note: In May 2015, Legal Clips summarized an article in The Bradenton Times reporting that MCSD had filed a motion asking Manatee County Circuit Court to dismiss the suit brought by Smith that claims MCSD is “failing to provide 30 consecutive minutes of PE daily.” Smith’s suit contends that under state law school districts are required to provide 150 minutes of physical education each week for Kindergarten through grade 5 (and some grade 6) students; “so that on any day during which physical education instruction is conducted there are at least 30 consecutive minutes per day.”]

 

 

Second Circuit rules parent is entitled to reimbursement for related services covered by district’s last IEP under IDEA’s stay-put provision, even though there was no FAPE violation

Doe v. East Lyme Bd. Of Educ., Nos. 14-1261/14-1638 (2d Cir. Jun. 26, 2015)

Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled:

School district did not violate the Individuals with Disabilities Education Act’s (IDEA) procedural requirement that parents have the right to participate in the development of an individual educational plan (IEP), even though the 2009-10 IEP was issued after the last IEP meeting the parent was present at;

The 2009-10 IEP was substantively adequate under IDEA;

The school district’s failure to offer an IEP for 2010-11 and subsequent years because the parent had removed the student from public school and unilaterally placed the student in private school constituted a denial of a free appropriate public education (FAPE) as required by IDEA;

However, the parent was not entitled to reimbursement for the cost of the unilateral private school place based on the district’s failure to provide a FAPE because the private school placement was not appropriate under the IDEA;

The services provided in the 2008-09 IEP were the services the district was required to continue to provide under the stay-put provision of IDEA;

The fact that the district provided a FAPE does not relieve it of liability under stay-put provision;

The district is liable for reimbursement of those special education services listed in the February 2009 amendment of the 2008-09 IEP;

The parent was not subject to IDEA’s exhaustion of administrative remedies in regard to the stay-put claim;

The stay-put obligation was triggered at the time the parent initiated the administrative due process proceedings, not when the parties reached an impasse; and

Reimbursement for the special education services is made on the basis of the full value of those services, not the parent’s out-of-pocket expenses.

Facts/Issues: John Doe, who suffers from autism, attended public school in East Lyme Public School District (ELSD) through the end of the 2006. Doe’s parent then placed him in a private school. Doe’s IEP provided that the parent would be responsible for the private school tuition, but ELSD would fund the cost of the related special education services. Following a dispute over the Doe’s proposed 2009-10 IEP, which placed him in public school, the parent continued his enrollment at private school ELSD, and continued to privately obtain some, but not all, of the related services previously funded by ELSD. The school district refused to pay for the private school or any related services on the ground that it ceased to be responsible for the Student once he was enrolled outside ELSD.

The 2008-09 IEP provided that Doe would receive the following special education services at ELSD’s expense: Orton-Gillingham reading instruction (5 hours/week), speech therapy (2.5 hours/week), and occupational/physical therapy (1.5 hours/week). In February 2009, the parties amended the IEP to increase speech therapy to 3 hours per week.

When ELSD officials and the parent reached an impasse regarding the proposed 2009-10 IEP, Doe continued to attend the private school during the 2009-10 school year, and was regularly pulled out of the classroom to receive special education services (which the private school did not offer) from private providers. The parent also arranged for Doe to receive some instruction over the summer. The parent absorbed all of these educational expenses.

In August 2010, the parent advised ELSD that unless she received a satisfactory IEP, she would continue Doe’s enrollment at the private school for 2010-11, and demanded reimbursement of her expenses. ELSD refused, on the ground that the Doe’s private school enrollment terminated the school district’s obligations under the IDEA.

In September 2010, the parent filed an administrative due process complaint alleging ELSD had failed to provide DOE with a FAPE and violated various procedural requirements under the IDEA and Connecticut law. The parent sought reimbursement for the private school tuition and the costs of the related services.

The hearing officer (HO) ruled in favor of ELSD. The HO determined that ELSD had offered a FAPE during the relevant school years, and that the lack of special education services at the private school made it an inappropriate placement under IDEA. The HO denied the parent’s request for reimbursement.

The parent filed an appeal in federal district court. The parties cross-moved for summary judgment on the basis of the administrative record. The district court ruled that as to 2009-10, ELSD had offered Doe a FAPE. While it found ELSD had failed to propose an IEP for 2010-2011 (and the subsequent school years) as required by IDEA, the parent was not entitled to relief because the private school was an inappropriate placement.

On the other hand, the court held that ELSD violated IDEA’s stay-put provision because it refused to continue funding the related services described in the amended 2008-2009 IEP once the parties reached an impasse. The court held that ELSD’s obligation to fund those services triggered as of June 17, 2009 (when impasse was reached), and ordered the school district to reimburse the parent for related services she funded since that date. However, it limited the amount of reimbursement to the parent’s out-of-pocket expenses.

Both the parent and ELSD appealed the district court’s decision. ELSD argued Doe’s private school enrollment terminated its obligations under the IDEA altogether, that it prevailed on the FAPE claim, and that liability for a stay-put violation is conditional on the Parent’s prevailing on the FAPE claim. The parent argued that ELSD failed to provide a FAPE, and that the private school was an appropriate placement.

Ruling/Rationale: The Second Circuit panel affirmed in part, vacated in part the district court’s decision, and remanded the case to the district court for proceedings consistent with the panel’s ruling. It began its analysis with the parent’s denial of FAPE claim based the inadequacy of the 2009-10 IEP, ELSD’s failure to issue IEPs for later school years, and the appropriateness under IDEA of the private school placement.

The panel stated that the premise of the assertion that the 2009-10 IEP was inadequate was that the parent was deprived of the right to participate in the development of the 2009-2010 IEP, because it was issued after the last meeting at which she was present. It rejected that premise pointing out that while IDEA guarantees the parent’s right of “participation . . . throughout the development of the IEP,” under IDEA “the duty to issue an IEP remains with the educational agency.” The panel concluded: “The right of participation encompasses the right to offer input and to have that input considered; it does not entail a right to be physically present throughout the agency’s own decisional process.” As a result, it found there was no procedural violation that amounted top denial of FAPE.

The panel also rejected the parent’s substantive challenge to the adequacy of the 2009-10 IEP. Giving substantial deference to the HO’s findings, it agreed with the HO’s conclusion that IEP’s combination of placement and services was substantively adequate. the panel, therefore, held that the 2009-10 IEP had provided Doe with a FAPE. As to ELSD’s failure to provide an IEP each of the subsequent years, it agreed that the failure constituted a denial of FAPE. However, the panel agreed with the district court that the parent was not entitled to relief because Doe’s private school placement was inappropriate. It, therefore, affirmed the district court’s decision in favor of ELSD on the FAPE claim.

Turning to the stay-put claim, the panel agreed with the district court that the stay-put placement was the one described in the 2008-09 IEP, as amended in February 2009, making that IEP the most recently implemented and agreed upon by the parties. It concluded that ELSD had clearly violated IDEA’s stay-put provision and its arguments to the contrary were meritless.

The panel, noting that ELSD contended that the parent should not be able to obtain reimbursement for the unilateral private school, stressed that the parent was not seeking reimbursement for the private school tuition, but for the costs of related services. It also rejected ELSD’s argument that the related services it agreed to fund did not form part of the Student’s educational placement for 2008-2009. It pointed out that the Second Circuit had applied the stay-put provision to payments for related services.

In addition, the panel dismissed ELSD’s contention that the 2008-2009 IEP cannot be a stay-put placement because the parties intended it to be a temporary arrangement. It emphasized that the stay-put obligation is rooted in statute, not contract.

Finally, the panel rejected ELSD’s argument that it cannot be held liable for a stay-put violation if it in fact provided a FAPE. It stated that the “stay-put provision means that an educational agency is required to maintain the status quo placement even if the child would otherwise have no substantive right to it.” The panel found ELSD’s reliance on the U.S. Supreme Court’s holding in Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985), misplaced because in the panel’s words:

Burlington stands for an unremarkable proposition: when a parent rejects a stay-put placement by unilaterally placing the child elsewhere, retroactive reimbursement for the unilateral placement is available, if at all, only through a FAPE claim.

We are not confronted with a Burlington scenario. Under the 2008-2009 IEP, the Student was to attend Solomon at parental expense and to receive related services at the expense of the Board. While paying for the related services herself, the Parent maintained that continuous placement during the pendency of this litigation. And far from declining the protection of stay-put, the Parent actively invoked it. At the June 2009 IEP Team meeting, she repeatedly demanded that the Board continue to provide stay-put placement.

As a result, it affirmed the district court’s grant of summary judgment in favor of the parent on the stay-put claim.

Lastly, the panel tackled the issue of the relief awarded by the district court. For purposes of determining what related services were subject to reimbursement under the stay-put provision, it concluded it was those services listed in and agreed upon in the February 2009 amendment to the 2008-09 IEP. It concluded that the parent was not subject to IDEA’s exhaustion of administrative remedies in regard to the stay-put claim.

The panel also found the stay-put obligation was triggered at the time the parent initiated the administrative due process proceedings, not when the parties reached an impasse. In addition, it determined that reimbursement for the special education services is made on the basis of the full value of those services, not the parent’s out-of-pocket expenses.

Doe v. East Lyme Bd. Of Educ., Nos. 14-1261/14-1638 (2d Cir. Jun. 26, 2015)

[Editor’s Note: In August 2014, Legal Clips summarized a decision by a three-judge panel for the U.S. Court of Appeals for the Sixth Circuit in N.W. v. Boone Cnty. Bd. of Educ. vacating the federal district court’s decision granting tuition reimbursement to the parents of a disabled student for their unilateral private school placement, even though the district court found that the parents had failed to prove that the school district denied the student a free appropriate public education (FAPE). The panel concluded that the lower court erred in holding that the Individuals with Disabilities Education Act’s (IDEA) “stay-put” provision applies in those situations where the parents withdraw the disabled student from the placement approved by the district, and then unilaterally place the student in private school without the district’s approval. Based on U.S. Department of Education (ED) regulations, the panel found that a valid “then current placement” for purposes of the stay-put provision requires an educational setting that the school district has approved at some point. As a result, a unilateral placement could not serve as a “then current placement” under the IDEA.]

 

 

 

 

 

 

 

 

 

 

 

 

Sua Sponte: In conjunction with ED/DOJ’s joint guidance issued in January 2015 on providing English language learner students with access to curricular and extracurricular programs, the departments issue chapter four of the toolkit

This tool kit should be read in conjunction with ED/DOJ’s Dear Colleague Letter (DCL) on “English Learner Students and Limited English Proficient Parents,” published in January 2015, which outlines SEAs’ and LEAs’ legal obligations to English language learner students under civil rights laws and other federal requirements.

In January 2015, Legal Clips published a Sua Sponte item on ED/DOJ’s press release announcing issuance of the DCL. The DCL provided a link to a toolkit for school districts to use to identify potential English learners. The toolkit, “Identifying Potential English Learners,” emphasizes that school districts must identify ELL students in need of language assistance services in a timely manner.

The fourth chapter of the toolkit, “Providing English Learners Equal Access to Curricular and Extracurricular Programs,” states that both states and local school districts “have the dual obligations to not only provide programs that enable EL students to attain English proficiency, but also to provide support in other curricular areas that will ensure ELs have equal opportunities to participate in the curriculum.” It also points out: “One measure of whether ELs are able to attain equal participation in the standard instructional program within a reasonable length of time is whether a beginner EL will be able to earn a regular high school diploma in four years.” The chapter identifies four tools: (1) Data Collection; (2) Six Key Principles For English Learner Instruction; (3) English Learners And The College- And Career-Ready Standards; and (4) Serving Gifted English Learners.

New York State Education Department issues guidance on accommodating transgender students

The New York State Education Department (NYSED) has issued guidance on accommodating transgender students, according to an Associated Press (AP) report in Crain’s New York Business. The guidance draws from real-life situations, addressing issues like students’ use of restrooms and changing spaces and which pronouns to use. The purpose of the guide is to help districts create a safe and inclusive environment and comply with laws covering bullying, harassment, discrimination and student privacy.

The new policy was praised by advocacy groups, including the New York Civil Liberties Union, which released a report in June calling discrimination and harassment of transgender students pervasive and accusing education officials of failing to carry out a legislative mandate to protect them. “New York schools should be a haven for all students,” NYCLU Lead Organizer Lauren Frederico, an author of the June report, said Monday. “Now that schools are clearly on notice on how to follow the law, we are hopeful that today’s announcement will be a turning point for transgender students in New York.”

The guidance directs schools to keep the birth names of transgender students who are new to the school confidential while publicly using a student’s preferred name. For students who transition while attending the same school, educators should develop a plan to begin using the chosen name and consistent pronouns. School officials should be careful when communicating with parents, the guidance said, because students don’t always share their gender identity with their families.

NYSED instructs school districts and administrators to use the guidelines to develop individual district policy. The document complements the 2010 Dignity for All Students Act aimed at ensuring that students have access to educational programs and activities free from discrimination.

Source: Crain’s New York Business, 7/21/15, By AP

[Editor’s Note: NYSED’s guidance, titled “Guidance to School Districts for Creating a Safe and Supportive School Environment For Transgender and Gender Nonconforming Students,” states: This guidance document is intended as a resource guide to help school and district administrators continue to take proactive steps to create a culture in which transgender and GNC [gender non-conforming] students feel safe, supported, and fully included, and to meet each school’s obligation to provide all students with an environment free from harassment, bullying and discrimination. 

In January 2015, Legal Clips summarized an article in  the Daily Press reporting that the American Civil Liberties Union of Virginia (ACLU-VA) had filed a complaint against Gloucester County Public Schools (GCPS) with the U.S. Departments of Education (ED) and Justice (DOJ) on behalf of Gavin Grimm, a female to male transgender student at Gloucester High School. The complaint alleges that GCPS is discriminating against Grimm on the basis of sex because it has adopted a policy limiting the facilities available to transgender students.]

Federal judge dismisses Title IX claims in transgender student’s suit over Virginia district’s restroom policy; indicates he is unlikely to grant student preliminary injunction barring enforcement of policy

According to the Daily Press, U.S. District Court Judge Robert G. Doumar said, during a hearing on a motion for a preliminary hearing, that it was “highly unlikely” he would grant the motion. Plaintiff Gavin Grimm, a transgender student, brought suit against Gloucester County Public Schools (GCPS) alleging that the school is discriminating against him by denying him access to the boys restroom. Grimm filed the motion asking the judge to order GCPS to allow him to use the boys restrooms until a decision on the merits of his claims.

Judge Doumar also dismissed Grimm’s Title IX claims against GCPS on the ground the federal law allows schools to have separate restrooms based on sex. The ruling came after the The U.S. Department of Justice (DOJ) filed a “statement of interest” in court in support of Grimm’s Title IX claims. DOJ argued GCPS’ policy violates Title IX because it discriminates on the basis of sex, which DOJ asserts includes gender identity and transgender status. Although the Title IX claims have been dismissed, Grimm’s suit rests on his Fourteenth Amendment’s Equal Protection Clause.

GCPS’ attorney David Corrigan argued, during the hearing, that “transgender” is not a protected class under the Constitution. He said the school division had offered three unisex restrooms to the entire student body at the school and allowed Grimm to continue to use the girls’ restrooms, which he has chosen not to do. “All students have equal comparable restroom facilities,” he said. “He is not being treated differently.”

Corrigan added the school district’s policy took into account the privacy of all students and said school officials took every step to accommodate Grimm’s transition, changing his name in official school records, using male pronouns and allowing him to use a home-bound program for physical education.

Joshua Block, an attorney for the ACLU who is representing Grimm, contended the policy created a stigma with its unequal treatment. “We want him to have the same rights everyone else has,” Block told the judge. “The stigma is not being transgender, it’s being told you have to use a separate restroom.”

Doumar said he was worried that Grimm, who is still biologically a female, could endure harassment or worse if allowed to use the boys restrooms. “Safety of the individual is a concern,” he said. “Why does one person’s rights have to be weighed against another person’s rights? … It really creates a monstrous problem.”

The judge told Block he did not see that a stigma had been created because everyone knows that Grimm is transgender. Doumar said the attorneys for the ACLU had named him in the initial filing of the suit, which he said was sent back to them to remove Grimm’s name. The suit now refers to him as “G.G.” Doumar said he wondered if that was to increase the publicity on the matter.

Block told the judge it is hard to humanize a case without a name. He said Grimm’s name was well known since the school board put the policy on its agenda last fall. Doumar also questioned whether the policy caused “irreparable harm” to Grimm, which is a legal term that means there will be harm to someone or something that cannot be repaired either physically or with money damages.

“What happens here is a question of precedence,” Doumar said. “I worry about precedence. If we cut out the (policy), does it mean anyone who genuinely believes they are of the opposite sex can use any restroom?” He asked if a ruling in Grimm’s favor would allow all transgender students in Gloucester County and the entire eastern district of Virginia to begin using the restroom of their choice. He told Block repeated during the hearing that Block was fighting an “uphill battle” in the case.

The judge indicated that after he has issued a written opinion on the motion for a preliminary injunction, he will set a trial date.

If Doumar rules in Grimm’s favor, it will be the first time a federal court has said that restricting a transgender student’s restroom use is discriminatory. Earlier this year, the U.S. District Court in Western Pennsylvania dismissed a lawsuit that a transgender male student filed against the University of Pittsburgh. The lawsuit was filed in 2011, and a judge said in April that the university didn’t discriminate against the 25-year-old student when it prohibited him from using male facilities because he was medically a woman.

Source: Daily Press, 7/27/15, By Frances Hubbard

[Editor’s Note: In July 2015, Legal Clips summarized an article in the Daily Press reporting that DOJ had filed a statement of interest in support of transgender student Gavin Grimm’s lawsuit against GCPS, which asserts that the board’s restroom policy violates Title IX because it discriminates on the basis of sex, which the department states includes gender identity and transgender status. The American Civil Liberties Union of Virginia (ACLU-VA) brought suit on Grimm’s behalf in federal court, alleging that the policy, which restricts students to either single-stall restrooms or the restrooms designated for their biological gender, discriminates against Grimm on the bases of his gender identity and transgender status.

While no federal court has held that denying transgender students access to the restroom of the gender they identify as violates federal law, the Maine Supreme Judicial Court ruled that a school district denial of restroom access to a transgender student violated the Maine Human Rights Act (MHRA). In December 2014, Legal Clips summarized an article in the Portland Press Herald reporting that Penobscot County Superior Court has ordered Orono school district to pay $75,000 to Gay and Lesbian Advocates and Defenders (GLAD) and attorney Berman Simmons, who represent transgender student Nicole Maines in her discrimination suit. The order, which was mutually agreed upon by the parties, prohibits the district from refusing to allow transgender students access to school restrooms that are consistent with their gender identity. 

In June 2013, Legal Clips summarized an article in The New York Times reporting that Colorado’s civil rights division had found that a school district discriminated against a transgender elementary student when it refused to let her use the girl’s bathroom. The division concluded that the Fountain-Fort Carson School District needlessly created a situation in which the student, Coy Mathis, would be subject to harassment when it barred her from the girls’ bathroom even though she clearly identified as female.]

OCR responds to NSBA’s March 2015 letter to OCR raising concerns about OCR, DOJ and OSER’s November 2014 “Dear Colleague Letter” guidance regarding ADA Title II’s “effective communication” regulation

On June 15, 2015, the U.S. Department of Education’s Office for Civil Rights (OCR) sent a letter to the National School Boards Association (NSBA) General Counsel Francisco M. Negrón, Jr. responding to the letter he sent to OCR on March 5, 2015 regarding the regulatory guidance issued by OCR, the Department of Justice (DOJ) and the Office of  Special Education and Rehabilitative Services (OSERS), on November 12, 2014, in the form of a “Dear Colleague Letter” (DCL) on the subject of the Americans with Disabilities Act (ADA) Title II’s “effective communication” regulation. Negrón’s letter expressed the concern “that absent clarification, the Departments’ joint position that public schools across the country must now apply both an Individuals with Disabilities Education Act (IDEA) analysis and an effective communication analysis under the Americans with Disabilities Act (ADA) in determining how to meet the communication needs of an IDEA-eligible student with a hearing, vision, or speech disability: “1) is a misplaced statement of the law that threatens to dismantle the IEP process, which is the appropriate and congressionally mandated process for educating students with disabilities; 2) will potentially disrupt necessary activities, services and programs for students; and 3)will burden schools both administratively and financially.”

NSBA’s letter raises two issues in regard to the federal guidance’s thrust. First, it asserts that OCR’s reliance on K.M. v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013), to express a national standard requiring school districts to apply both an IDEA analysis and a Title II effective communication analysis in determining how to meet the communication needs of students who have a speech, hearing, or vision disability is erroneous. Second, NSBA’s letter calls on OCR  to clarify: (1) “The Role of the IEP Process vis-à-vis Section 504 and the ADA;” (2) “The Standard to Use to Determine a Fundamental Alteration in the Nature of a Service, Program, or Activity;” and (3) “The Standard to Use to Determine an Undue Financial and Administrative Burden on Schools.” In addition, it calls on OCR to  provide the basis for their sweeping conclusion that “[c]ompliance with the effective communication requirement would, in most cases, not result in undue financial and administrative burdens.”

In its response, OCR indicated that the November 2014 guidance is based on the Ninth Circuit’s reasoning in K.M. v. Tustin Unified Sch. Dist. It stressed that based on that decision that while compliance with IDEA’s free appropriate public education requirement will often be sufficient to meet a school district’s obligation to comply with ADA Title II’s “effective communication” requirement it is not always the case. According to the guidance, “To comply with both statutes, a school may have to provide additional and different services.” It did not explain why it believes that every school district in every judicial circuit in the country should be required to follow the mandate in a case that only applies to school districts in the Ninth Circuit.

The OCR’s response also points out that the DCL focuses public schools’ obligations to students with hearing, vision, and speech disabilities. Lastly, it refers NSBA back to the guidance and the attached FAQ sheet.

In November 2014, Legal Clips published a Sua Sponte item summarizing the OCR November 2014 DCL and accompanying FAQ sheet. The DCL and  FAQ sheet address school districts’ legal obligation “to apply both the IDEA analysis and the Title II effective communication analysis in determining how to meet the communication needs of an IDEA‐eligible student with a hearing, vision, or speech disability.” The two page DCL provides a brief overview of the Title II “effective communication” regulation and the FAQs. The FAQ sheet is a 30 page document that provides OCR’s responses to 20 questions regarding “Effective Communication for Students with Hearing, Vision, or Speech  Disabilities in Public Elementary and Secondary Schools.” The introduction to the FAQs states that the focus of the document is “on the different approaches used by the IDEA on the one hand, and Title II on the other, to determine what a school must do for a student with a hearing, vision, or speech disability.”

Lawsuit claims Arkansas district’s board violated state’s FOIA by voting to ban district’s rebel mascot and song

KFSM 5News reports that the Fort Smith School Board (FSSB) has been hit with a lawsuit claiming the board violated the Arkansas Freedom of Information Act (FOIA) when the board voted during a June 2015 meeting to ban the rebel mascot and performance of the song “Dixie.” Specifically, the suit alleges the June meeting violated FOIA because notices regarding the meeting did not include any indication that the song and mascot would be changed.

According to the lawsuit, FSSB sent out a notice to the public and local news media stating that the June 23 meeting would be to discuss the annual evaluation of the superintendent of the Fort Smith School District (FSSD). The suit states, “The purpose of the notice was to lead members of the public and media into believing that the meeting was [just] to discuss a personnel issue and that the meeting would not be open to the public, or at least for the most part not open to the public because it concerned a personnel issue.”

The suit alleges that no notice of the intended changes to the song or mascot were sent out, but KFSM 5News was tipped off concerning the planned changes. Following the meeting the news outlet was informed that the changes to the song and mascot were “official,” the suit alleges. It also contends changing the fight song of the school and mascot will cost taxpayers between $200,000 and $500,000, and officials have not informed the public where that money will come from.

The thrust of the suit is that FSSB members violated FOIA by misleading the public to believe the June meeting would be a closed one for the purpose of evaluating the superintendent, rather than to determine if the mascot and song should be changed.

Source: KFSN 5News, 7/23/15, By Curt Lanning

[Editor’s Note: The legal complaint is seeking a court order requiring that all future FSSB meetings be held in accordance with FOIA and FSSD’s policies and procedures. In June 2012, Legal Clips summarized a decision by the Virginia Supreme Court in Hill v. Fairfax Cnty. Sch. Bd. affirming a circuit court decision that the Fairfax County School Board (FCSB) did not violate the Virginia Freedom of Information Act (FOIA), as the exchange of e-mails among board members discussing the closing of a district elementary school did not constitute a “meeting” under FOIA. In affirming the circuit court’s denial of the citizen’s petition for a writ of mandamus, the state supreme court agreed that the citizen was not entitled to attorneys’ fees and costs, because she did not substantially prevail on the merits of her case.] 

Mississippi court rules that state is not obligated to fully fund schools every year

Hinds County Chancery Judge William Singletary has ruled that the Mississippi legislature has no legal obligation to fully fund an education budget formula every year, says an Associated Press (AP) report in The Clarion-Ledger. The suit was brought by former Gov. Ronnie Musgrove on behalf of 21 school districts.

The school districts sought more than $240 million they said they were shortchanged during six state budget years, the most recent of which ended on June 30. The suit also sought an order that would have affected the entire state by making legislators fully fund a formula that was put into law in 1997, but has been ignored most years.

Judge Singletary said he would not issue that order because a portion of the law, added in 2006, includes alternatives for how the state should handle education funding during years when money falls short. “Every day we cheat school funding is a sad day for our state,” Musgrove said, reacting to the ruling. “While I am disappointed in today’s ruling, I am more disappointed that adequate funding for our children’s future is a matter of debate.” George Shelton, a partner in a political consulting firm with the former governor, says Musgrove plans to appeal the decision to the Mississippi Supreme Court.

The judge’s opinion states that he believes education “is one of the most important functions of state government” and that “MAEP [Mississippi Adequate Education Program] should be annually funded to the fullest extent possible.” He continued:

This court is sympathetic to plaintiffs’ untenable position of being required to educate the students of Mississippi with less than a fully funded MAEP. However, this court is unable to interpret the relevant statutes as imposing a mandatory annual duty on each legislator to automatically vote to apportion and allocate to each district 100 percent of the funds estimated under MAEP.

A separate political struggle over school budgets is shaping up in the coming months because two proposed constitutional amendments that deal with school funding will be on Mississippi’s statewide ballot in November. Initiative 42, which got on the ballot through a petition process, would require Mississippi to fund “an adequate and efficient system of free public schools.” Legislators put an alternative, Initiative 42-A, on the same ballot. It would require Mississippi to fund an “effective” system of public schools. Critics said legislators put the alternative on the ballot as a way to kill the citizen-led initiative.

House Appropriations Committee Chairman Herb Frierson said that he is pleased Singletary ruled against Musgrove in the school funding lawsuit. But Frierson said he still worries that if either ballot initiative is adopted, budget writers will have to slash spending for other state services. “If you put a subjective term like ‘adequate’ in the constitution, then it becomes the interpretation of a judge as to how much money is adequate,” Frierson said.

Supporters of Initiative 42 have opposed Musgrove’s lawsuit and have said Frierson is trying to scare people out of voting for their proposal.

Source: The Clarion-Ledger, 7/15/15, By Emily Wagster Pettus (AP)

[Editor’s Note: In October 2014, Legal Clips summarized an article in Gulflive.com reporting that Mississippi Attorney General (AG), Jim Hood, had filed a motion in Hinds County Chancery Court seeking dismissal of a lawsuit filed by 21 school districts claiming that Mississippi owes them $230 million in education aid and demanding an end to future shortfalls. The AG’s office argues that despite a 2006 law that mandates that the school aid formula must be fully funded, that guarantee has no power to bind future legislatures.]

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