Teachers’ union sues Milwaukee school system for exclusion of erectile dysfunction drugs from health care plan

According to the Associated Press, the Milwaukee Teachers’ Education Association (MTEA) has been waging a two year battle with the Milwaukee school system’s board over the board’s decision to exclude erectile dysfunction (ed) drugs, such as Viagra, Cialis, and Levitra, from the teachers’ health care plan. MTEA contends that the drugs are necessary treatment for “an exclusively gender-related condition.”  However, the school board attorneys counter that  the drugs were excluded in 2005 to save money, and there is no discrimination because their use is not a medical necessity.

One state legislator is question why MTEA would embroil itself in a dispute over ed drugs when teachers are losing their jobs (referring to a massive layoff of teachers in June). A school board consultant has estimated that reinstating the drug benefit would cost $786,000 per year, which State Rep. Jason Fields argues would be money better spent on saving jobs.  MTEA spokeswoman Kris Collett declined comment. However, the union’s attorney, Barbara Quindel, stressed that the case was worth fighting despite the district’s grim finances because erectile dysfunction is associated with heart disease, prostate cancer and other conditions, and the drugs are approved by the Food and Drug Administration and recommended by the American Urological Association. “MTEA believes that men should not be discriminated against in receiving treatment for their medical conditions,” she said.

Health insurer Aetna Inc., which provides one of the district’s two plans, says its standard pharmacy plans exclude Viagra and other “drugs for lifestyle enhancement or performance.” Basic state employee health plans also generally don’t cover those drugs, but more expensive premium plans might, said Dick Cauchi, who tracks health benefits at the National Conference of State Legislatures. Lisa Soronen, National School Boards Association senior staff attorney, also said she had never heard of a similar case or an example of a union negotiating coverage for erectile dysfunction drugs. “If you are getting down to what drugs are covered, you are really getting in the weeds,” she said, explaining most negotiations are over premiums and co-payments.

Although the board agreed to cover the ed drugs after negotiations in 2002, by 2004, the number of claimants receiving prescriptions skyrocketed to more than 1,000 per year, costing the district $207,000. During negotiations in 2005, the board proposed eliminating the benefit and an arbitrator adopted the plan. In 2008, MTEA filed a sex discrimination complaint with the state. In June, the Labor and Industry Review Commission ruled the union couldn’t pursue the case without identifying employees who have been injured by the policy and the complaint was filed after the statute of limitations expired. The union is asking a Milwaukee County Circuit Court judge to overturn that decision and declare that the policy violates the Wisconsin Fair Employment Act.

MTEA’s claim appears to be unique because ed drugs are usually cited as examples of discrimination against female employees. Several lawsuits have claimed that employer health plans discriminate against women when they cover Viagra but not contraceptives or infertility treatment. MTEA, on the other hand, claims men are treated unfairly here. The union’s lawyers have argued that vaginal cream, anti-bacterial medicine and estrogen replacement medication for female sexual dysfunction are covered.

Source: Associated Press, 8/7/10, Ryan J. Foley

Admissions test for elite New York City high school raises diversity concerns

The lack of diversity at Hunter College High School (HCHS), a public school for intellectually gifted students, has sparked a debate over the school’s admissions test after the school’s principal resigned, says the New York Times. Eileen Coppola cited several reasons for her decision, including tensions over a lack of diversity at the school.  A faculty committee issued a notice of no confidence to the president of Hunter College, which oversees the high school. Coppola’s  resignation inflamed a long-standing disagreement between much of the high school faculty and the administration of Hunter College over the use of a single, teacher-written test for admission to the school, which has grades 7 through 12. HCHS faculty committees have recommended that the admissions process be broadened to include criteria like interviews, observations or portfolios of student work, in part to increase minority enrollment and blunt the impact of the test preparation undertaken by many prospective students.

According to Hunter College’s dean for diversity John Rose, eliminating the test is not on the table. “Parents, faculty members and alumni feel very strongly that the test is very valuable in terms of preserving the kind of specialness and uniqueness that the school has,” Rose said. Like other elite schools that rely exclusively on a test for admitting applicants, HCHS has seen its African American and Hispanic enrollment drop from seventh-grade class in 1995 that  was 12% percent African American and 6%  Hispanic to 3% African American and 1% percent Hispanic this past year, while Asian students make up 47% and white students  41% of the student population.  The balance was 47 percent Asian and 41 percent white, with the other 8 percent of students identifying themselves as multiracial. African American  and Hispanic students make up 70% of the school system.

Efforts are under way to increase diversity, focusing on outreach. For the first time, the school this year sent mailings directly to all city fifth graders who scored in the top 10 percent on both the state English and math tests, the criteria to take the Hunter test, rather than relying on schools to pass the word. Hunter High also started a mentoring program for promising third graders.

Source: New York Times, 8/4/10, By Sharon Otterman

[Editor's Note: While not all graduate, undergraduate and K-12 competitive schools similar to HCHS rely exclusively on an admissions tests, the schools struggle with the issue of ethnic/racial diversity among the student body. In 1998, a three-judge panel of the U.S. Court of Appeals for the First Circuit (ME, MA, NH, PR, RI) grappled with the Boston school system's admission policy for its "examination schools," which include the renown Boston Latin.  The admission policy provided that forty-five of the ninety seats available to incoming ninth graders would be filled based solely on applicants’ composite score ranking, while race/ethnic origin would be the determining factor in filling the other forty-five seats among the remaining qualified applicants. When a white applicant was denied admission to the school of her choice, she filed suit. In a 2-1 split, the First Circuit panel, in Wessmann v. Gittens, ruled  that the Boston school system's admissions policy for its examination schools that allocated half of the entering class’ seats on the basis of a “flexible racial/ethnic guidelines” violated the white applicant’s equal protection rights because the school committee was unable to establish a compelling governmental interest for the policy based on either diversity or remedying the vestiges of past racial/ethnic discrimination. A summary of the First Circuit panel's decision is available to COSA members at the first link below.

In 2003, the U.S. Supreme Court issued two decisions on constitutionality of the University of Michigan's undergraduate admissions policy and the university law school's admissions policy. In Gratz v. Bollinger, it struck down the undergraduate policy, while upholding the law school policy in Grutter v. Bollinger. COSA members can access summaries of these opinions at second and third links below. In 2007, the Supreme Court turned its attention to the student assignment plans for Seattle School District and Jefferson County Board of Education in PICS v. Seattle School District No. 1. The Court ruled that student assignment plans in Jefferson County and Seattle that take a student’s race into consideration violate the Equal Protection Clause of the Fourteenth Amendment. A summary of the opinion is available at the fourth link below.

Based on Justice Kennedy's concurring opinion in PICS, school districts have been crafting school assignment plans that develop ethically and racially diverse student populations in their schools using socio-economic factors, while avoiding the focus on an individual student's racial/ethnic identity. So far the results are mixed. In Student Doe 1 v. Lower Merion School District, a federal district court in Pennsylvania  ruled that a school district’s use of racial demographics to redraw the attendance zones for its two high schools did not violate African-American students’ rights under section 1981, Title VI of the Civil Rights Act of 1964 or the Fourteenth Amendment’s Equal Protection Clause. A summary of the opinion is available at fifth link below. Meanwhile in North Carolina, the Associated Press and others have reported on the ongoing tensions in Wake County, where the Wake County School Board’s vote to eliminate its busing policy in favor of keeping students in schools close to their homes ended a diversity plan that was considered a model for school districts. A summary of the article is available at the sixth link below.

Finally, during its October 2009 term, the Supreme Court in Lewis v. City of Chicago considered a case addressing the disparate impact of a written test given to applicants for Chicago firefighter positions.  The Court found unanimously that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim.  The plaintiffs in the case were applicants who had not been called to move on to phase two of the application process because they were not in the group, termed "well-qualified," that had scored 89 or above on the exam. Because the test had a disparate impact on African-American applicants, and such applicants were affected every time the city pulled from the "well-qualified" pool of test-takers, the Court found that the clock effectively re-started each time the city applied its policy, not just from the moment it adopted the policy.  The Supreme Court's opinion is available at the seventh link below.]

NSBA COSA archives on Wessmann v. Gittens

NSBA COSA archives on Gratz v. Bollinger

NSBA COSA archives on Grutter v. Bollinger

NSBA School Law pages on PICS v. Seattle Sch/ Dist. No. 1

NSBA Legal Clips archive on Student Doe 1 v. Lower Merion Sch. Dist.

NSBA Legal Clips archive on termination of Wake Couty diversity plan

Lewis v. City of Chicago

Lawsuit alleges private recruiter forced Fillipino teachers into indentured servitude

A class action suit filed by the American Federation of Teachers (AFT) and the Southern Poverty Law Center (SPLC) on behalf of a group of Filipino teachers alleges that the teachers were the victims of a human trafficking scheme to bring hundreds of Filipino teachers to Louisiana public schools using exploitative contracts that charged them excessive, illegal fees, says an Associated Press (AP) report in Bloomberg Businessweek. The suit charges Universal Placement International Inc. (UPII) with racketeering and fraud in connection with its recruiting of teachers from the Philippines to work in a number of school districts in Louisiana. AFT/SPLC claims UPII illegally required the teachers to pay thousands of dollars in fees to be hired to jobs mainly in East Baton Rouge Parish, but also in Caddo, Jefferson and other parishes and in state-run schools in New Orleans.

According to AFT attorney Daniel McNeil the teachers were saddled with crippling debts, placed into shoddy housing and threatened with deportation if they complained. He  equated the conditions to forced labor and indentured servitude. SPLC legal director Mary Bauer added, “This is far closer to slavery than we should be willing to tolerate.”  The suit contends that the teachers were required to pay a $16,000 fee.   If they could not afford the fees, the teachers borrowed money, in many instances from lenders recommended by the recruiting firm who charged hefty interest rates. The suit contends that, once in the United States, the teachers were forced to agree to pay a percentage of their monthly income to UPII and fees for arranging housing; their passports and visas were confiscated to ensure the fees would be paid.

The suit names UPII’s sister operation in the Philippines, PARS International Placement Agency  as a defendant, as well as the East Baton Rouge Parish School Board and several current and former school system administrators, including former Superintendent Charlotte Placide.  They are accused of ignoring the alleged abuses and in some cases assisting the recruiting company with illegal behavior. “It was more than turning a blind eye. They actively participated in what was going on,” Bauer said.  The AFT/SPLC suit seeks a refund of all fees paid by teachers and damages totaling millions.  Last October, the Louisiana Federation of Teachers filed complaints with state authorities alleging the company was operating illegally in the state and charging the teachers exorbitant fees.  In April, a state labor department judge ordered the company to refund fees that the LFT estimates will total $1.8 million. The company’s attorney said that ruling would be appealed.

Source: Bloomberg Businessweek, 8/6/10, By Melinda Deslatte (AP)

[Editor's Note: USA Today reported on the complaints filed by the AFT and the Louisiana Federation of Teachers (LFT) with the Louisiana Workforce Commission and attorney general last fall.    AFT filed an additional complaint with the U.S. Department of Labor (DOL). The unions alleged the companies kept the teachers in "virtual servitude" by holding onto their U.S. work visas unless they kept paying inflated fees, commissions and rents. A summary of the article is available below.]

NSBA School Law pages on AFT/LFT complaints

Bill introduced in Congress to ban corporal punishment in schools receiving federal assistance

U.S. Rep. Carolyn McCarthy (D-NY) has introduced legislation that calls for a national end to paddling, a form of corporal punishment, in all schools in the United States. She calls corporal punishment a safety issue in schools, saying it can aggravate students and make them violent. The "Ending Corporal Punishment in Schools Act" would ban any form of physical discipline on students in public and private schools that receive federal funding. The bill would also provide federal grants to schools dealing with disciplinary issues to promote nonphysical ways to change student behavior.

However, some educators insist corporal punishment is a vital tool in maintaining discipline in schools. "Our public education is in a state of crisis because the current discipline system in this nation is being ineffectively implemented," said Kenneth Whalum Jr., a board commissioner for Memphis City Schools in Tennessee. "Corporal punishment would be an arrow in the quiver for teachers to use at their disposal. It’s the best way to get the system right." According to a recently released report by the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW), 20 states current allow the  use paddling.

According to the most recent data available from the U.S. Department of Education, Office for Civil Rights, 223,190 students nationwide were paddled at least once in the 2006-07 school year, including at least 41,972 students with disabilities. Because minority students are among those most likely to be paddled, there are questions about the fairness of using corporal punishment. Nonetheless, corporal punishment proponents, such as Whalum , believe  physical discipline promotes good behavior, which is necessary for academic progress.

Source: CNN, 8/5/10, By Liane Membis

[Editor's Note: The ACLU/HRW report referred to in the article is available at the first link below. In 2009, the Memphis Commercial Appeal reported on a Memphis charter school that subjects students to public paddling at school assemblies as an integral part of the school's disciplinary program. The school's principal, Curtis Weathers, said, "This is nothing that we are ashamed of."  He added, "It's very effective for us as a strategy for avoiding certain conducts." A summary of the article is available at the second link below.

The U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL) considers three factors in cases where a plaintiff has alleged excessive corporal punishment to the point of substantive due process violation: “(1) the need for the application of corporal punishment; (2) the relationship between the need and amount of punishment administered; and (3) the extent of the injury inflicted.”  In June, a three-judge panel of that court decided in a 2-1 split, that a teacher’s use of force to restrain a student with autism/pervasive developmental disorder violated neither the student’s substantive due process right to be free from excessive corporal punishment nor his rights under section 504 of the  Rehabilitation Act.  A summary of the case, with links to additional corporal punishment cases, appears at the third link below.

The Associated Press reported in July that the Georgia State Board of Education (GBOE) had voted to prohibit the practice of placing students in solitary confinement, also known as seclusion. GBOE’s new rule also limits the use of restraint to calm misbehaving students in the classroom and, for the first time, requires schools to notify parents when their children are restrained by teachers and other school officials.  A summary is at the fourth link below.]

ACLU/HRW report

NSBA School Law pages on Memphis charter school paddling policy

NSBA Legal Clips archive on T.W. v. Sch. Bd. of Seminole County

NSBA Legal Clips archive on Georgia state BOE ban on seclusion rooms

Parent challenges student’s suspension for alleged violation of school district’s unpublished “good conduct policy”

Courthouse News Service reports that a Thedford, Nebraska parent is suing Thedford school district for suspending his daughter from extracurricular activities for two years for allegedly violating the district’s unpublished “good conduct policy.” Richard Jameson claims that Superintendent Henry Eggert imposed the suspension after he came into possession of a photograph that purportly shown Courtney Jameson holding a beer at a party. According to Jameson, Eggert informed  him that Courtney would be disciplined for violating the so-called “good conduct policy,” which Eggert claimed was published in the student handbook.

The suit claims that the “good conduct policy” was never published in the student handbook until after Courtney’s suspension took place. Jameson claims that when he asked for a copy of the handbook, the superintendent gave him 12 unmarked pages that were dated two days after their meeting.
The suit adds that when Jameson’s attorneys then asked for the complete handbook, they were sent the same unmarked pages.  ”At the time of Courtney’s alleged actions, Thedford Public Schools had no published rule concerning the possession or use of alcohol outside of school activities or off school grounds,” the suit asserts. “Neither did the school have any published rule concerning a student being present at a party where alcohol was being consumed.” The suit is asking that Thedford be enjoined from enforcing the unpublished policy.

Source: Courthouse News Service, 8/5/10, Adam Klasfeld

[Editor's Note: A copy of Jameson's legal complaint is available below.  It asks for equitable relief in the form of an injunction barring the discipline.]

Legal complaint

School district ordered to drop nickname deemed racist by Wisconsin Department of Public Instruction

The Associated Press reports in the Superior Telegram that the Wisconsin Department of Public Instruction (WDPI) has ordered Osseo-Fairchild School District (OFSD) to drop its Chieftains nickname and logo after a determination that it was race-based and promoted discrimination and harassment. Under recently enacted legislation, WDPI has the authority to order schools to drop their race-based nicknames and logos if they are deemed discriminatory. The department’s ruling could affect 34 other school districts in the state with similar Native American based names. Under the law, districts that refuse to drop names after being ordered to do so face $1,000 per-day fines.

OFSD has one year to stop using the Chieftains logo and nickname or face fines. The decision on whether to appeal the ruling will be the school board’s, according to  district superintendent Edward Dombrowski. "For me the most important thing is what effect is this going to have on the kids in the community. . . . It really split the community. I’m really hoping this becomes an opportunity for us to pull together." The order authored by WDPI School Administration Consultant Paul Sherman noted that the district doesn’t have the permission of any federally recognized American Indian tribe to use the name or logo. The order determined that using it amounts to stereotyping, discrimination and student harassment in violation of state law.

Source: Superior Telegram, 7/27/10, By Scott Bauer (Associated Press)

[Editor's Note:   The order issued by WDPI, which contains details about the history of the district's use of the "Chieftains" nickname and logo, appears at the first link below.  In the order, the consultant found that the district was unable to produce clear and convincing evidence that the nickname and logo were not race-based.   There was evidence, however, including social science research, suggesting that the symbols were race-based and use of such symbols is damaging to members of the ethnic group. 

In 2005, the NCAA adopted a new position with respect to Native American team names and symbols.  According to its web site:  "The NCAA policy on Native American mascots does not require member institutions to change their names or mascots. The actual policy precludes member schools with Native American nicknames, mascots, or imagery from hosting NCAA championships.  These schools are still eligible to participate in championships, but the policy restricts them from wearing uniforms or other paraphernalia that depict nicknames or images while competing in NCAA championship events. The NCAA only governs member universities and colleges."  Additional information on the NCAA's policy is available at the second link below.

Some other states have acted to discourage the continued use of Native American names and/or symbols as nicknames or mascot, but without the enforcement teeth that the Wisconsin law has.  For example, in 2007 the Forest Grove News-Times reported that a high school was hoping that the Oregon Department of Education (DOE) would reverse an advisory committee recommendation to eliminate mascots depicting Native Americans at all publicly funded Oregon schools in two years.   As of February of this year, according to the Native American Times, the Oregon DOE had not issued a recommendation, and schools with Naive American mascots and images continue to use them. The article is available at the third link below.  A summary of the article from the Forest Grove News-Times is available at the fourth link below to COSA members.

For a first-hand account of a North Carolina school district's review of its schools' use of American Indian symbols, American School Board Journal subscribers may follow the fifth link below. ]

State Superintendent of Public Instruction order on Osseo-Fairchild nickname and logo 

NCAA team mascot policy

Native American Times:  No change in American Indian mascot names in Ore.

NSBA COSA database resource on Oregon mascot dispute

American School Board Journal:  Mascots and Meaning

Missouri Supreme Court rejects Kansas City School District’s constitutional challenge of state charter schools act

The Missouri Supreme Court has ruled that the state charter school statute, which allows charter schools to declare themselves local education agencies (LEA) and thereby receive funding directly from the state, does not violate the state constitutional provision that prohibits diversion of local property tax revenue to any entity other that the Kansas City School District (KCSD). The supreme court also ruled that the statute’s LEA provision does not violate the state constitution’s Hancock Amendment, which prohibits unfunded state mandates.

In 2005, Missouri amended its charter schools act to allow charter schools to receive funding directly from the state. The amendment allowed a charter school to declare itself a local education agency (LEA), which would make the charter school eligible to receive funding directly from the state based on a statutory formula that considers charter school attendance and the amount of local tax revenue allocatable to students attending charter schools. After every charter school in KCSD declared itself an LEA, the school district, along with a group of local taxpayers, filed suit in state court against the state alleging that the 2005 amendment violates two provisions in the state constitution:  one that prohibits any local tax revenue to go to any entity other than KCSD, and another (the Hancock Amendment) that prohibits unfunded state mandates to be imposed on KCSD and reductions in the amount of state funding to KCSD based on the number of students that have left KCSD traditional public schools to attend charter schools in the district.

The state trial court rejected KCSD’s constitutional challenges, holding that the 2005 charter schools act amendment did not violate either constitutional provision. Because the suit involved the validity of a statute, the case was appealed directly to the Missouri Supreme Court.

The supreme court upheld the charter schools act amendments under both of KCSD’s theories.  It held that the act does not require a direct or indirect transfer of funds from the KCSD to any of the LEA charter schools in the district because, "while the amount of state funds paid to the KCMSD per pupil pursuant to the foundation formula is reduced by an amount equivalent to the amount the state pays to these district charter schools per pupil based on the local levy, the money paid to these charter schools is state money, not locally levied funds." Even if this method were considered an indirect transfer, the state constitution permits use of the monies locally levied under it for all "school purposes of the district," including the district’s charter schools.   KCSD admitted that, as a factual matter, it does not transfer revenue collected from local property tax assessments to any LEA charter school.

Turning to the Hancock Amendment claims, the supreme court noted that KCSD did not have standing to pursue those claims, but the taxpayer plaintiffs did. It rejected the contention that the 2005 charter schools act amendment imposed an unfunded mandate. While the state legislature has authorized charter schools, it imposed no new or increased activity on the part of KCSD. The court said, "The KCMSD serves no role in funding the charter schools, and their existence does not create or increase any mandate to the district." It found that many of the expenditures cited by KCSD were discretionary or federally mandated. As a result, the court concluded that "if expenditures are not mandated by the state, they are not relevant for Hancock purposes."

School Dist. of Kansas City v. State of Missouri, NO. SC90323 (Mo. Aug. 3, 2010)

[Editor's Note: Background on the suit is available at the first link below. In May, Courthouse News Service reported that KCSD had filed a separate suit in Jackson County Circuit Court against three charter schools claiming the state illegally diverted $6.1 million from its budget to Kansas City charter schools. At issue is the state’s attempt to require school districts to divert property tax revenues to charter schools. KCSD requests in the suit that the charter schools return the diverted funds.  The suit is at the pre-trial stage with parties currently filing answers to the complaint.  A summary of the article is at the second link below.

Last week, the Michigan Supreme Court ruled that the state had violated a state constitutional amendment prohibiting the imposition of unfunded mandates on local school districts when it imposed increased record keeping tasks on local districts in order to satisfy state and federal student performance accountability standards. A summary of the opinion is available at the second link below.]

NSBA School Law pages on KCSD charter school funding suit against state

NSBA Legal Clips archive on KCSD suit against charter schools

NSBA Legal Clips archive on Adair v. State

Chicago teachers’ union files suit to block layoffs

The Chicago Teachers Union (CTU)  has filed suit in federal court against the school district seeking to halt further teacher layoffs, says the Chicago Tribune. The suit was brought after the district fired 239 citywide teaching coaches and sent layoff notices to at least 600 teachers and other personnel. CTU officials are seeking the reinstatement of dismissed personnel and asking that further layoffs be stopped. Meanwhile, the two sides are locked in negotiations over layoffs and increases in class size to alleviate a $370 million budget deficit. The district is seeking concessions, such as salary freezes or unpaid vacations, while the union has argued to keep cuts away from the classroom.

CTU’s suit alleges that the teachers’ rights were violated under the Illinois school code and the union contract because at least some layoff decisions were not made based on seniority. In addition, CTU charges that teachers’ due process rights have been violated. "CTU’s affected members have had no opportunity or other procedural due process required … to be heard as to why they should be retained," the suit states. The suit also challenges the district’s plan to terminate about 200 teachers who were rated unsatisfactory. The union claims the move would violate the teachers’ contract, but school officials argue it is allowed under the Illinois school code.

Source: Chicago Tribune, 8/4/10, By Azam Ahmed

[Editor's Note: The Chicago Public School (CPS) issued a statement noting the severe budget crisis in Illinois and CPS's $370 million budget deficit.  "We believe the CTU’s lawsuit is without merit and we will vigorously defend the district’s actions and policies against the allegations this lawsuit raises. We must—and will—protect our students from the effect of this budget crisis."  The statement can be found at the first link below.

The CTU suit is the latest action in the long-standing dispute between it and the school district regarding decisions resulting from unprecedented budget cuts.  In June, the Chicago Sun-Times reported that CTU officials were suing the City of Chicago Board of Education (CCBOE) claiming that the board’s plans to increase class sizes to 35 would create an unsafe learning environment for students and teachers.  A summary of the article appears at the second link below.

In May, the Los Angeles Times reported that a Los Angeles County Superior Court judge had ruled that the Los Angeles Unified School District (LAUSD) cannot for budgetary reasons lay off teachers at three of the city’s lowest-performing middle schools. A summary of the article is available at the third link below.

Last week, the Washington Examiner reported that the Washington Teachers Union (WTU) plans to bring a class action suit challenging the recent termination of 241 teachers for poor performance. WTU President George Parker contends that the terminations are based on a “flawed document” –  the D.C. Public Schools’ teacher and staff evaluation tool, called Impact, which rates teachers from “highly effective” to “ineffective.” A summary of the article is at the fourth link below.]

CPS statement on CTU layoff suit

NSBA Legal Clips archive on Chicago Teachers Union suit regarding class size

NSBA Legal Clips archive on LA teacher layoffs

NSBA Legal Clips archive on WTU suit

Principal failed to state valid claim of constructive discharge without due process after being placed on administrative leave for insubordination and reassigned

A U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) three-judge panel, in a 2-1 split, has ruled that a principal failed to raise a valid claim that she was constructively discharged without due process  when the school district relieved her of her duties as a middle school principal for insubordination and later reassigned her to dean of students at a high school because she failed to show that the district’s actions amounted to either affirmative termination or constructive discharge.  The principal had failed to show that the school district created an intolerable work environment that forced her to resign because the evidence suggested that she had left the district’s employ voluntarily.

Kimberly Heutzenroeder was employed by Mesa County Valley School District 51 (MCVSD51) as a middle school principal in 2004.  MCVSD51 renewed her employment contract  in 2005, 2006 and 2007.  Her yearly contract guaranteed a salary but not a specific position. At the beginning of 2007-2008 school year, an incident occurred that led to a conflict between Heutzenroeder and her supervisor. As a result, she was placed on a performance improvement plan (PIP).  Assuming she would eventually be terminated, Heutzenroeder began looking for employment in the private sector. When she refused to attended a meeting regarding her PIP that was called on short notice, her supervisor placed her on administrative leave for insubordination. Shortly thereafter, MCVSD51′s attorney informed her  that the school district was no longer interested in retaining her services and that he was being directed to negotiate a settlement. However, the attorney did not state that she was being terminated. Settlement negotiations ultimately proved to be unfruitful. Heutzenroeder was subsequently informed that she was being reassigned for the remainder of the 2007-2008 school year to a dean of students position at the high school. She was also told that if she renewed her Colorado teacher’s license, she would be assigned as a teacher for the next school year at a reduced salary.

Based on these developments, Heutzenroeder informed her supervisor that she believed that she had been terminated. The supervisor assured her that she had not been terminated and expected her to report to her new assignment. When Heutzenroeder did not report to her new position, the supervisor contacted her and Heutsenroeder informed her that she had accepted a position in the private sector because she believed she had been fired. MCVSD51 subsequently sent her a letter stating that acceptance of the private sector job constituted job abandonment and breach of her employment contract.  As a result, it considered her as having terminated her employment of her own accord.

Heutzenroeder filed suit in federal district court against MCVSD51 alleging violation of her procedural due process rights and breach of her employment contract. The district court granted MCVSD51 summary judgment because Heutzenroeder "could not demonstrate an affirmative termination or a constructive discharge which, as a matter of law, precluded her from succeeding on her breach of contract and procedural due process claims."

The panel’s majority affirmed the lower court’s decision and dismissed the case. It recognized that Heutzenroeder had a property interest was "limited to her general employment for the 2007-08 school year and her promised salary for that year." It then turned to second prong, noting that Heutzenroeder’s sole contention was that she had been constructively discharged because MCVSD51 had created "an intolerable work environment that forced her to quit and seek other employment."

Thre question of whether constructive discharge occurred is in general a question of fact for the jury to decide.  The panel majority noted, however, that when "the record does not give rise to a reasonable inference that a constructive discharge has occurred, the question is appropriately resolved by a judge as a matter of law." In order for a court to conclude that constructive discharge occurred it must find that the employer made working conditions so intolerable that a reasonable person in the employee’s position would conclude she had no choice but to resign.

Applying the reasonable standard to the facts of Heutzenroeder’s case, the majority determined that "the evidence does not give rise to a reasonable inference that a constructive discharge occurred." On contrary, it found that the evidence "overwhelmingly supports the conclusion that Ms. Heutzenroeder voluntarily resigned." She had an alternative to resigning, which was to finish out the school year in the new assignment as dean of students. There was no evidence that a reasonable person would have viewed this alternative to be intolerable. In addition, there was no misunderstanding as to the choice the school district was offering and she had sufficient time to consider whether to continue her employment with MCVSD51 or to resign. A number of other factors supported the finding that her resignation was voluntary, in particular that she had begun a job search while on sick leave.

The dissent argued that the majority had failed to view the facts in a light most favorable to Heutzenroeder and draw all reasonable inferences in her favor. It criticized the majority for failing "to mention – much less to credit – Plaintiff’s evidence in its quite perfunctory discussion on the constructive discharge issue." The dissent believed that Heutzenroeder’s evidence was sufficient for a jury to find in favor of her on the constrictive discharge claim.

Heutzenroeder v. Mesa County Valley Sch. Dist. 51, No. 09-1331 (10th Cir. Aug. 3, 2010)

[Editor's Note: In 2009, the Tenth Circuit, in case a involving a school custodian who filed suit claiming retaliation under the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Family Medical Leave Act (FMLA), ruled that he failed to state a valid claim  because his allegations did not support a finding that he had been constructively discharged. A summary of the opinion is available below.]

NSBA School Law pages on Lara v. Unified Sch. Dist. No. 501

Administrative law judge applied wrong standard in determining whether student suffering from Ehlers-Danlos Syndrome was eligible for special education services under IDEA

A U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) three-judge panel has reversed the decision of an administrative law judge (ALJ) and the district court, ruling that a student suffering from Ehlers-Danlos Syndrome (EDS) was not eligible for special education services under the Individuals with Disabilities Education Act (IDEA) because his medical condition does not adversely affect his educational performance. The panel concluded that both the ALJ and the federal district court had applied the incorrect standard in determining whether the student’s  EDS rendered him eligible for services.  The ALJ had found that the student’s EDS adversely affects his educational performance because it causes him to experience pain and fatigue at school school, which can affect his educational performance (emphasis added).  "This is an incorrect formulation of the test, " found the panel.  "It is not whether something, when considered in the abstract, can but whether in reality it does adversely affect a student’s educational performance."

C.D. attends school in Marshall Joint School District No.2 (MJSD2). Because of his EDS, the IEP team found him eligible for special education, and MJSD2 provided him with additional resources in his academic classes and special education services in gym. His eligibility for such services was reevaluated in second grade, at which time the team determined that he was no longer eligible for special education services. MJSD2 employed the two-step process mandated by IDEA for determining C.D.’s eligibility:  (1) whether the child has a disability recognized by the statute; and (2) as a result, needs special education.   EDS fell within the catch-all category of "other health impairment" under the IDEA.  In order for a condition in this category to qualify, however, it must adversely affect the student’s educational performance. If this threshold step is satisfied, the school district must determine whether as a result the student “needs special education.” Although MJSD2 concluded C.D.’s EDS does not adversely affect his educational performance, it still addressed the second step. It concluded he "did not need special education because his needs could be met in a regular education setting with some slight modifications for his medical and safety needs."

C.D.’s parents disagreed with the finding and requested an administrative (due process) hearing.  The ALJ rejected MJSD2′s finding,  holding that C.D.’s “ability to fully and safely perform and participate in certain physical activities at school, including regular PE class and recess, is adversely affected by his EDS.” The ALJ also rejected MJSD2′s alternative finding that C.D. did not need special education, concluding that C.D. “cannot safely engage in unrestricted participation in various activities of the regular PE program and that he requires special education, particularly specially designed PE and related services to meet his unique needs.”  MJSD2 appealed the ALJ’s decision to a federal district court in Wisconsin, which upheld the ALJ’s ruling.

The Seventh Circuit panel reversed the lower court’s decision and remanded the case to it with instructions to enter judgment for MJSD2.   It found that the ALJ’s misstatement of the law had affected her finding and had resulted in over reliance on C.D.’s doctor’s opinion even though the doctor lacked any special education expertise.  "[T]he ALJ applied the wrong legal standard in determining whether the EDS adversely affected C.D.’s educational performance, and while there is evidence that the EDS can affect C.D.’s educational performance, there is no substantial evidence to support the ALJ’s finding that it has an adverse affect."

The appellate panel pointed out that even if the ALJ’s analysis of the first step had been correct, the ALJ would still have to determine if C.D., as a result of his condition, requires special education.  Agreeing with MJSD2′s contention that "physicians cannot simply prescribe special education for a student," the panel rejected the ALJ’s reliance on C.D.’s medical experts.  The panel rejected the ALJ’s finding that C.D.’s adaptive physical education teacher’s testimony was "not credible," noting that the teacher was responsible for both formulating and implementing  his individualized educational plans (IEP) and coordinating the modifications and accommodations that allowed C.D. to participate more fully in physical education class. It found that the very expertise that the teacher exercised in ensuring that C.D.’s IEP was followed was being discounted because according to the ALJ the teacher’s compliance with IDEA negated her contention that C.D. was no longer in need of special education.

The panel found that C.D. had no need of special education in physical education because  "his needs could be addressed by allowing him to participate in regular gym with a health plan." It noted, as had the district court, that C.D. did not need special education in gym because he was performing at grade level and had made huge personal gains over previous years. Lastly, the panel noted C.D.’s indeed could benefit from physical and occupational therapy.”  These services are related services, however, used to give a student the full benefit of special education instruction under IDEA.  The statute is "perfectly clear on this point: if a child has a health problem ‘but only needs a related service and not special education, the child is not a child with a disability.’"

Marshall Joint Sch. Dist. No. 2 v. C.D., Nos 09-1319/09-2499 (7th Cir. Aug. 2, 2010)

[Editor's Note: In 2007, the U.S. Court of Appeals for the First Circuit (ME, MA, NH, PR, RI)  ruled that a student suffering from Asperger’s Syndrome qualified as a "child with a disability" under the Individuals with Disabilities Education Act (IDEA) entitled to special education services, even though she excelled academically, because any negative impact her condition had on her educational performance, regardless of degree, could qualify as an "adverse effect" for purposes of IDEA’s eligibility test. A summary of the opinion is available below.]

NSBA School Law pages on Mr. I. et al. v. Maine Admin. Dist. No. 55