Federal appellate court rules disabled student failed to state a claim for peer sexual harassment under § 504, has valid claim under § 504 for district’s refusal to make reasonable safety accommodations to IEP

Stewart v. Waco Indep. Sch. Dist., 11-51067 (5th Cir. Mar. 14, 2013)

Abstract: A U.S. Court of Appeals for the Fifth Circuit (TX, LA, MS) three-judge panel, in a 2-1 decision, has ruled that a disabled student failed to state a claim for student-on-student sexual harassment under § 504 of the Rehabilitation Act of 1973.  However, the panel’s majority concluded that she had stated a valid  §504 claim that the school district committed gross misjudgment in failing to modify her IEP to safeguard her after three incidents of alleged sexual abuse by students.  The also found that the student was not required to exhaust her administrative remedies because: (1) the school had failed to raise the argument on appeal; and (2) the § 504 claim was not seeking relief available under the Individuals with Disabilities Education Act (IDEA).

The dissent stated that the § 504 claim, which focused on complaints about the school district’s handling of her IEP, was barred by the plaintiff’s failure to exhaust her administrative remedies under the IDEA.  The dissent also opined that the majority misapplies § 504 law to create tort liability for money damages against the school district.

Facts/Issue: Andricka Stewart, who suffers from mental retardation and speech and hearing impairments and qualifies as a person with a disability under the Americans with Disabilities Act (ADA) and Section 504, attended Moore Academy where she received special education services pursuant to an IEP.  After an incident involving sexual contact with another student, Waco Independent School District (WISD) modified Stewart’s IEP to provide that she be separated from male students and remain under close supervision while at school.

However, Stewart claimed that she was involved in three other instances of sexual contact, which she characterizes as “sexual abuse.”  In one incident a male student sexually abused Stewart in a school bathroom.  WISD determined  that Stewart “was at least somewhat complicit” in the incident and suspended her for three days.  The next incident occurred when she was allowed to go to the restroom unattended, where she was again sexually abused by a male classmate.  The final incident involved a male student exposing himself to Stewart.  Stewart  was again suspended for her role in the incident.  According to Stewart,  WISD failed to take any steps to further modify her IEP to prevent future abuse after any of the incidents.

Stewart filed suit in state court against WISD.  WISD removed the case to federal district court on federal-question grounds.  Stewart brought claims under § 504, alleging “gross mismanagement” of her IEP and failure to reasonably accommodate her disabilities.  She asserted that the suspensions meted out deprived her of educational benefits.  Stewart also brought claims under ADA and Title IX.

The district court dismissed all claims on the ground Stewart was attempting to hold WISD liable for “the actions of a private actor.”  Although she did not appeal the Title IX claim, Stewart borrowed Title IX’s deliberate indifference standard, contending that she could state a claim under § 504 for WISD’s deliberate indifference to disability-related student-on-student sexual assault, in addition to “gross mismanagement” of her IEP.  WISD argued that Stewart “has essentially packaged a dispute over its legitimate disciplinary and educational decisions as a civil-rights action.”

Ruling/Rationale: The Fifth Circuit panel’s majority reversed the lower court’s decision, reinstating Stewart’s § 504 claim that WISD acted with gross misjudgment in failing to further modify her IEP.  It rejected Stewart’s Section 504 claim for deliberate indifference to student-on-student sexual harassment, because Stewart’s allegations did not meet the stringent standard established by the Supreme Court in Davis ex. rel. LaShonda D. v. Monroe Cnty Bd. of Educ., 526 U.S. 629 (1999).

The majority made short work of Stewart’s claim that WISD was liable for student-on-student sexual harassment under § 504.  Citing the Supreme Court’s decision in Davis, the majority held that the Title IX standard for district liability was “deliberate indifference to known acts of harassment.”  Noting that this is an “exceedingly high” standard, the majority found Stewart’s cursory allegations fell well short of the bar.  Lacking in Stewart’s complaint was information on the “constellation of surrounding circumstances, expectations, and relationships” necessary to assess the school district’s actions.

The majority contrasted Stewart’s paucity of allegations with factors that courts had found “relevant in the context of student-on-student harassment under Title IX”:

The complaint fails to address the harassers’ identities and relationship to Stewart, the punishments meted out to the harassers, the nature of the abuse, the names and responsibilities of District personnel with knowledge of the harassment, the time-delay between the abuse and the District’s response, the extent of Stewart’s harm and exclusion from educational opportunities, the specific reasons why the District’s responses were obviously inadequate, or the manner in which such responses likely made Stewart susceptible to further discrimination.

The majority then turned to Stewart’s § 504 claim based on WISD’s alleged refusal to make reasonable accommodations for her disabilities.  After noting the lack of case law on the issue, it pointed out “that bad faith or gross misjudgment are just alternative ways to plead the refusal to provide reasonable accommodations, an ambiguity potentially left open by our precedent in this area.”

Under this standard, it would be “immaterial whether the District explicitly refused to make reasonable accommodations; professionally unjustifiable conduct suffices.”  This was necessary because a “contrary interpretation would limit § 504 claims only to where a school district literally refuses to make an accommodation.”  The majority concluded that “a school district refuses reasonable accommodations under § 504 when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment.”

While acknowledging that the gross-misjudgment inquiry borrows from the deliberate-indifference doctrine, the majority distinguished between the two theories by pointing out that ”deliberate indifference applies here only with respect to the District’s alleged liability for student-on-student harassment under a Title IX-like theory of disability discrimination.”  ”On the other hand, ‘gross misjudgment’–a species of heightened negligence–applies to the District’s refusal to make reasonable accommodations by further modifying Stewart’s IEP.”  The majority further explained, “Thus, although the inquiries have much in common, whether the District’s actions were ‘clearly unreasonable’ with respect to peer-occasioned disability harassment remains analytically separate from whether it acted with gross misjudgment as measured by professional standards of educational practice.”

Applying these principles to Stewart’s § 504 claim, the majority emphasized that while WISD may in its initial response have satisifed “its duty under a deliberate-indifference standard by taking remedial—but inadequate—action,” based on the record, it had an ongoing duty under the gross misjudgment standard to modify her IEP when shortcomings in it became apparent.  As a result, the majority found, “on the record as it currently stands without the benefit of further discovery,” Stewart “plausibly states a claim that the District committed gross misjudgment in failing to implement an alternative approach once her IEP modifications’ shortcomings became apparent.”

The majority said that certain allegations, such as the closeness in time between the first two incidents involving Stewart’s use of the restroom, made for a plausible argument that WISD could have successfully modified Stewart’s IEP, e.g to prohibit her from going to the restroom unattended.  It stated: “It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.”  However, the majority warned that its opinion “should not be read to make school districts insurers of the safety of special-needs students.”

The dissent disagreed with the decision for the following two reasons.  One, the majority ruling permits Ms. Stewart to use § 504 of the Rehabilitation Act to enforce her IEP even though she never exhausted her administrative remedies under the IDEA.  Two, the majority misapplies § 504 to create tort liability for money damages against the school district.

The dissent contended that Stewart’s claims were subject to IDEA’s exhaust of administrative remedies requirement because the sole focus of the suit was the shortcomings of her IEP.  It stated: “at the heart of Ms. Stewart’s lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes.”

In addition, the dissent opined that “the majority has in its application of controlling standards created tort liability for money damages, allowing Stewart to proceed on pleadings that, at best, state a plausible claim for oversight or negligence.”  It stated:

[T]he majority allows parents unhappy with an IEP to bypass the comprehensive remedial scheme of the IDEA and sue under § 504 for money damages.  It then misapplies § 504 to impose on schools a tort-like duty not to mismanage a disabled student’s IEP.  This unfortunate consequence defies precedent.

Stewart v. Waco Indep. Sch. Dist., 11-51067 (5th Cir. Mar. 14, 2013)

[Editor's Note: In November 2012, Legal Clips published a Sua Sponte item announcing that NSBA, along with the Georgia School Boards Association, Georgia School Superintendents Association, and the Alabama Association of School Boards, had filed an amici curiae brief in Long v. Murray County School District, Docket No. 12-13248, now before the U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL).  The appellate court will review the decision by the U.S. District Court for the Northern District of Georgia, as to whether it “correctly concluded, relying on Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), that [the parents of a special education student] had not presented evidence of ‘deliberate indifference’ required to establish a peer-on-peer harassment claim” under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act.

NSBA warns the Eleventh Circuit that the U.S. Supreme Court’s intentionally narrow Davis standard should not be expanded because it “would discount years of precedent regarding deference to public officials generally, and school officials in particular with respect to matters of school discipline and safety.”  School officials are in the best position to develop effective strategies to create safe learning environments.

NSBA’s January 2013 Inquiry and Analysis, available to COSA members, featured an article by Ronald D. Wenkart, entitled The OCR created “Right” to a Free Appropriate Public Education under Section 504: Time for a Challenge, which reviews court decisions that have followed Davis rather that the more lenient standard pushed by OCR in its October 26, 2010 Dear Colleague Letter.

In December 2010, NSBA General Counsel Francisco Negrón, Jr. challenged the Dear Colleague Letter in a response to OCR citing Davis and other authorities.]

Legislative efforts to allow armed teachers have mixed results

Following the National Rifle Association’s call for armed individuals in every school nationwide, the Huffington Post reports that the push to put guns in schools has stalled in many traditionally gun-friendly states after encountering opposition from educators, reluctance from some governors and ambivalence from legislative leaders more focused on economic initiatives. The loss of momentum highlights how difficult it can be to advance any gun legislation, whether to adopt greater restrictions or expand the rights to carry weapons.

Since the Dec. 14, 2012 shooting at Sandy Hook Elementary School, South Dakota is the only state to respond with a new law allowing school personnel to carry guns into elementary and high schools.  Similar legislation is awaiting the governor’s signature in Kansas.  And Arkansas has enacted a new law allowing colleges to let staff with concealed gun permits bring their weapons on campus.

After opposition from education groups, the North Dakota Senate defeated a bill that would have let people with permits bring their weapons into schools. And the New Hampshire House rejected legislation that would have let local school districts seek voter approval for their personnel to carry guns.  ”The chances an armed teacher will hit a child are high,” Dean Michener, of the New Hampshire School Boards Association.

Just days after the Newtown shooting, Michigan Gov. Rick Snyder vetoed legislation letting concealed weapon permit holders – including teachers – carry guns in schools, because there was no provision for local school districts to opt out.  Indiana Gov. Mike Pence raised concerns this past week about a bill requiring an armed “school protection officer” onsite during school hours.  ”Decisions that are nearest and dearest to our hearts ought to be made by parents and local school officials,” Pence told reporters.

Some states such Texas and Utah already allow teachers and administrators to bring guns to school, though the practice is not common.  Just three Texas school boards have granted permission for concealed guns.

Source: Huffington Post, 4/8/13, By David A. Lieb

[Editor's Note: Oklahoma appears to be on its way to enacting a law allowing teachers and other school personnel to carry guns in school. As reported by Tom Humphrey in the knoxnews.com on April 18, 2013, the Oklahoma Senate, 27-6, has approved legislation that would allow at least a few teachers and other school personnel to take their guns to class.  The bill includes an amendment declaring that only the school principal, the school superintendent, and local law enforcement authorities will know those authorized to carry weapons.

The Oklahoma House, which had approved the measure earlier, approved the Senate revisions on a 75-15 vote without debate. That sends the bill to Gov. Bill Hassam, who negotiated with legislators in drafting the overall bill.  The legislation grants authority to carry guns in schools to faculty and staff who have law enforcement experiences, who hold a handgun carry permit, who get written approval from the school superintendent and school principal and then attend a special 40-hour class in “school policing.”

Each school system will decide whether to allow guns for qualified people in schools.  The state will provide no funding, but the governor’s budget for the coming fiscal year includes $34 million for distribution to schools statewide for security improvements and schools could use their share for retaining guards.

In April 2013, Legal Clips summarized an NPR story reporting that a National Rifle Association (NRA) task force has issued a report, in response to the Newtown, Connecticut school shooting, recommending the creation of programs that give additional weapons training to school resource officers as well as “selected and designated school personnel” who could then carry arms.  The task force is also recommending that states without such laws consider changing their statutes to allow trained school personnel, including teachers, to be armed while on the job.]

New York district signs agreement with OCR to enhance minorities’ opportunities for advanced courses

According to the Journal News, the White Plains, New York school system has entered into an agreement with U.S. Department of Education’s (ED) Office for Civil Rights (OCR) that requires the district to encourage and provide more opportunities for nonwhite students to take AP and honors courses.  The agreement ended an OCR investigation, which began in 2011, into whether the district’s honors and AP course protocols discourage Hispanic, black or non-English speakers from taking the higher-level courses.  The investigation was part of OCR’s practice of randomly auditing districts for discrepancies.

According to data collected during the investigation, 18% of the high school student population in 2011-12 was black but only 9% enrolled in honors and AP courses; 47% of students were Hispanic but only 31% of the students in the AP and honors courses were Hispanic; and 9% of students were non-English speakers but only 3% were enrolled in the higher level courses. Vowing to make the agreement work, Superintendent of Schools Christopher P. Clouet said, “We have a strong track record of making sure we are offering to our diverse student body all the courses and clubs and offerings that we have and we know there’s room for improvement in this regard.”

As part of the agreement, the district will hire a consultant to collect and analyze data on enrollment and possible barriers to enrollment in the courses, increase its communication to parents and students about the courses, and find more ways to encourage all students to apply.  While most of the changes will begin in the fall, the district already has let parents of eighth-graders know about the honors and AP courses they can take in high school.

Source: Journal News, 4/18/13, By Randi Weiner

[Editor's Note: ED's press release announcing the agreement states:

Under the agreement, the district will, as necessary:

• Expand criteria to determine eligibility and selection for enrollment in programs and courses.
• Expand student, parent, and community outreach about the available courses and programs; and
• Make improvements to the academic counseling services at the middle and high school levels and training for relevant district and school site administrators and personnel.

 OCR also investigates alleged discrimination via the administrative complaint route.  In February 2013, Legal Clips summarized an article in The Voice reporting that the Michigan Department of Civil Rights (MDCR) had filed a complaint with OCR seeking an order prohibiting the use of Indian nicknames, mascots, chants, and imagery.  MDCR’s complaint alleges that new research shows a negative impact on student learning, creating an unequal environment in violation of the Civil Rights Act of 1964.

In addition to OCR, the U.S. Department of Justice (DOJ) investigates complaints of discrimination against school districts. In February 2013, Legal Clips summarized an article in The Palm Beach Post reporting that DOJ had finalized a settlement with the Palm Beach County School District (PBCSD) over discipline and enrollment practices.  The agreement addressed two complaints alleging discrimination in how PBCSD disciplines students who struggle to speak English, and how it handles registration and enrollment of undocumented immigrants.]

Florida Teachers’ union sues state alleging mix of merit pay and performance based evaluations violate US Constitution

The Orlando Sentinel reports that teachers in three school districts, along with their local unions, have filed suit in federal court charging Florida’s sweeping merit-pay law unfairly resulted in many teachers’ evaluations being based on the test scores of students or subjects they did not teach in violation of the equal-protection and due-process clauses of the U.S. Constitution.  The suit names the state education commissioner, the State Board of Education and the Alachua, Escambia and Hernando school boards as defendants.

According to Andy Ford, president of the Florida Education Association (FEA), “This lawsuit highlights the absurdity of the evaluation system that has come about as a result of SB 736.”  Senate Bill 736 was the merit-pay legislation the Florida Legislature adopted in 2011, overhauling how teachers are evaluated, promoted and paid.

FEA wants implementation of the law halted, teachers’ evaluations from the 2011-12 school year set aside and then the evaluation system revamped.  Its lawsuit is backed by the National Education Association, as well.

Education Commissioner Tony Bennett said in a statement he supports the law.  But he also said he backs legislative efforts to make sure teachers are not subject to it until an “appropriate assessment for their students and subjects is in place.”

FEA already has sued Florida over the merit-pay law in a circuit court, arguing the law violates the state constitution and infringes on teachers’ rights to bargain collectively.  The new lawsuit claims violations of the Fourteenth Amendment of the U.S. Constitution stemming from how test-score data was used to judge teacher quality.

The law, which is being phased in, changed teacher evaluations to base half on student growth as measured by test-score data.  To do that, the state used a complicated “value added” formula to crunch students’ reading and math scores on the Florida Comprehensive Assessment Test.  School districts are to use other tests and formulas to judge teachers who do not teach the so-called FCAT subjects or grades.  But those are not available yet.  So in the meantime, school-wide FCAT data was used to judge most teachers.

Source: Orlando Sentinel, 4/16/13, By Leslie Postal

[Editor's Note: In April 2012, Legal Clips summarized an article on News4Jax.com reporting that FEA had filed a challenge in the Division of Administrative Hearings to proposed Florida Department of Education (FDE) rules implementing  the 2011 law that includes teacher performance pay.  The FEA claims FDE officials would overstep their legal authority in determining how school districts evaluate teachers.]

Title IX suit claims New York softball venue not comparable to minor league stadium used by baseball team

The Batavian reports that a number of players on Batavia High School’s (BHS) softball team and their parents brought suit against the school district claiming the female softball players have been denied their rights under Title IX because the girls’ softball field is not comparable to Dwyer Stadium where the boys’ baseball team plays its games.  The suit was filed by the Empire Justice Center (EJC) on behalf of the players and parents.

Although the suit alleges that the varsity softball field there is substandard, Section V officials and area softball coaches say the field isn’t anything out of the ordinary.  According to Bob Huber, chairman of the Section V girls softball committee, no coach has ever complained about the facilities at BHS.  In fact, the BHS has been used previously for neutral-ground games during early Section V playoff rounds.

The suit says the facilities are unequal because the girls’ field doesn’t have 2,200 covered grandstand seats, nor lightning for night games, a ticket booth, an outfield fence, an electronic scoreboard, press box, covered dugouts, concession stand and bullpens.  The boys don’t use all those amenities at Dwyer.  High school games do not involve selling tickets and the concession stands are never open during high school games.  The suit also alleges the girls playing at BHS can’t hit out-of-the-park home runs because there is no fence at BHS, as the outfield overlaps with a soccer field.  Few high school players can a hit home run over Dwyer’s 12-foot-high outfield walls, 330 feet from home plate down each line.

In addition, the suit claims the “infield is covered with pebble-sized gravel mixed with some dirt, making it dangerous and painful for players to slide.” Ron Funke, athletic director and girls softball coach with Pembroke HS, and a member of the Section V committee, said the Batavia field is the same quality typical not only of girls fields, but boys fields, throughout Section V.  ”It’s a special infield mix commonly used on softball and baseball fields,” he said.

The suit states, “The infield material makes it harder for the players to play at their most competitive level and has given them a reputation in their league for having the worst field.”  But both Funke and Huber said they’ve never heard complaints about Batavia’s field and Funke said he thinks it’s a fine place to play.

While the suit alleges that many girls’ fields in “the league” have fences, dugouts and seating, both Huber and Funke said it’s really a mixed bag. There are several teams without fences, they said.  Both said there are also some boys’ teams in Section V that play on fields without dugouts and bullpens.

The suit has multiple paragraphs covering the lack of night lightning for girls softball, noting that night games “have a big-league quality not associated with day games.”  There are never night high school games played at Dwyer because night lighting is expensive.

The school district included proposed upgrades to the girls’ field as part of a bond measure rejected by voters in 2011, and are including $110,000 in funding for upgrades in a bond measure that will go before voters next month. School officials say, and the suit acknowledges, that Empire Justice attorneys were aware of the proposed bond measure before filing the lawsuit.  The suit complains that if the bond passes, improvements will only cover dugouts, scoreboard and a fence, and that the changes won’t take place prior to the 2013 season.

In response to being asked if  the district has considered moving the boys out of Dwyer and to one of the district’s three baseball fields, Superintendent Chris Dailey responded, ”We’re always thinking.”

Source: The Batavian, 4/10/13, By Howard Owens

[Editor's Note: EJC's legal complaint, which was filed in federal district court and seeks class action status, contains two counts: (1) Unequal Treatment and Benefits in Athletic Programs in Violation of Title IX of the Education Amendments of 1972; and (2) Sex-Based Discrimination in Violation of the Fourteenth Amendment to the United States Constitution.

In its press release responding to the Title IX lawsuit, Batavia City School District said, "The District believes this lawsuit is misguided as the issues addressed in the lawsuit have already been diligently pursued and we have prepared a proposition for voter approval during the annual District’s budget vote in May 2013." It added:

"Unfortunately, the District’s good-faith efforts in terms of work already done to the field as well as the presentation of comprehensive facility upgrades to the voters for approval in May 2013 were ignored. However, with just a few more months of patience, it is the District’s belief that it will be able to embark on a comprehensive and complete renovation to the softball facilities."

In September 2012, Legal Clips summarized an article in the Oregonian reporting that the fathers of two Seaside High School softball players filed a class action lawsuit against Seaside School District 10 (SSD10), alleging that their daughters, and more than 250 other female students, have been denied and deterred from fully participating in team sports at the high school.  The suit charges Athletic Director Jason Boyd and SSD10′s Board of Directors with violating Title IX and equal rights protections of the Fourteenth Amendment, by affording boys more participation in sports and better chances of success than girls.  The suit claims SSD10 gives male athletes more favorable facilities for practice and competitions, including better locker rooms, training facilities, equipment, travel and transportation.  It also alleges gender imbalances in coaches’ salaries and their facilities, as well as the scheduling of games and practice times, publicity, funding, and athletic recruitment.]

Football helmet manufacturer Riddell negligent in failing to warn of concussion dangers

The Associated Press (AP) on CBS News  reports that a Colorado jury has found Riddell, a football helmet manufacturer, negligent in failing to warn players about concussion dangers, in a lawsuit brought by the family of a severely injured high school football player.  The company faces a similar lawsuit in Los Angeles, plus a complaint by thousands of former NFL players against the league and Riddell.

The jury awarded $11.5 million to the family of Rhett Ridolfi, who suffered a concussion during practice at Trinidad High School in 2008.  Ridolfi wasn’t immediately taken to the hospital and now has severe brain damage, as well as paralysis on his left side.

The lawsuit was originally brought against Riddell and several high school administrators and football coaches.  The jury assessed 27% of the fault for Ridolfi’s injuries to Riddell, making the company responsible for paying $3.1 million of the damages.  Three people reached confidential settlements before Saturday’s verdict, but two coaches were still defendants at the trial.  Ridolfi’s lawyer, Frank Azar, said that he’ll ask a judge to find Riddell responsible for paying all $11.5 million in damages.

Riddell said it planned to appeal the verdict but was pleased that jurors rejected allegations regarding helmet design defects.  ”While disappointed in the jury’s decision not to fully exonerate Riddell, we are pleased the jury determined that Riddell’s helmet was not defective in any way,” the company said in a statement.  It said it believes it designs and manufactures the most protective football headgear for athletes.

Riddell contends that the court erroneously excluded testimony from its warnings expert, though Azar disputed that.  ”I think this jury has said they’re in very serious trouble,” said Azar, who said he is representing between 10 and 20 former NFL players with complaints against Riddell.

In October 2012, a jury in Mississippi found Riddell wasn’t responsible for an injury to a high school football player who had suffered a stroke after a practice.

Source: CBS News, 4/14/13, By AP

[Editor's Note: A number of suits brought by high school players who suffered disabling concussions have named coaches, athletic directors and other school officials, along with the school district, as defendants charging that they have failed to properly treat the concussion.  In September 2012, Legal Clips summarized an article in Courthouse News Service reporting that Blake Allen Ripple was suing Marble Falls Independent School District and Cord Woerner, his former head football coach and athletic director at Marble Falls High School, claiming the coach’s lack of concern about a concussion Ripple suffered has left him permanently disabled. The federal lawsuit states: “At one time Ripple was a National Honor Society Student and Academic All-District.  Now he is unable to live independently, let alone go to college.”]

Proposed Florida law gives parents of special needs students final say over educational plan

Under current law schools decide whether to move a disabled student into special education classes, but a bill in the Florida legislature would give parents of children with special needs more power over their education, reports StateImpact.  Education for kids with special needs is spelled out in a plan tailored for each student known as an individual education plan (IEP). The proposal is getting strong bipartisan support and is ready for a full vote by the House and the Senate.

The proposed legislation would give parents of special needs kids the final say about their child’s education.  If a school district wants to override a parent’s decision, it would have to convince a judge.

However, Denise Rusnak, who oversees special education for Broward County Public Schools, said schools must have the ability to do what’s best for each student.  “There’s medical malpractice,” Rusnak said.  “To me, it’s educational malpractice to make a decision that’s not in the best interest of the child.”

Supporters of the bill, on the other hand, say schools are more apt to take special needs kids out of general education so they won’t have to take standardized tests such as the Florida Comprehensive Assessment Test (FCAT).  Starting next year, those test scores factor in to teacher salaries.

Rusnak responds that  the state only allows a small percentage of kids to be exempt from the FCAT.  “So, if a school is doing that, we’re going to see and were going to go in and investigate it,” Rusnak said, “and we’re going to make sure they’re making the right decisions for kids.”

The federal Individuals with Disabilities Education Act (IDEA) requires a due process hearing when there is a dispute between the parents and the school district.  However, backers of the Florida legislation want parents to have more control than federal law provides.

According to Ann Siegel of  the advocacy group Disability Rights Florida, “I think they’re kind of forgetting what the special part in special education was, and that is to provide that specially designed instruction to meet the unique needs of the students so the students can achieve to the same extent as their non-disabled peers.”  Siegel’s group has represented many students who she says were inappropriately moved to a special diploma track.

Besides giving parents more power, the proposed law calls for more special needs training for teachers.  It also allows parents to hire private help to assist their children in the classroom.

Source: StateImpact, 4/22/13, By Gina Jordan

[Editor's Note: Under IDEA when the parents of a disabled student believe his/her IEP is inadequate they they can request a due process hearing to resolve the dispute.  After that remedy administrative is exhausted, dissatisfied parents can file suit in federal court seeking to overturn the administrative decision.

In August 2012, Legal Clips summarized a decision by the majority of a three-judge panel from the U.S. Court of Appeals for the Fifth Circuit (TX, LA, MS) in Klein Indp. Sch. Dist. v. Hovem, holding that the Klein Independent School District  did not violate the Individuals with Disabilities Education Act  because, with accommodations for his disability, the student’s IEPs enabled him to excel in a mainstream high school curriculum.]

Former student’s Title IX suit faults Michigan district’s response to sexual assault and cyberbullying reports

mlive reports that a former Forest Hills Central High student claims school officials failed to properly investigate allegations she was sexually assaulted at school by a prominent athlete, and ignored her claims of cyberbullying that forced her to leave school.   Her suit contends that because her claim that she was sexually assaulted wasn’t taken seriously by school authorities, students believed she was lying and began harassing her at school and on the Internet. Her legal complaint states: “In the months following the assault, anonymous students used (a website) to attack plaintiff using vicious and sexually-charged language arising from their erroneous belief that plaintiff was lying or exaggerating the sexual assault.”

The student, identified only as “Jane Doe,” filed the lawsuit in federal court against the school district, Superintendent Daniel Behm, Principal Terry Urquhart, and Anne Edsenga, assistant superintendent and Title IX coordinator.  She is being represented by a local attorney and an attorney from the National Women’s Law Center (NWLC) in Washington, D.C.  The attorneys said the school violated their client’s Title IX rights that prevent exclusion of an education program based on her sex.

The girl was a 15-year-old sophomore, while the alleged attacker, identified only by initials, was a junior when the Nov. 3, 2010, incident occurred in a soundproof band room off an unmonitored hallway, the lawsuit said.  The next day, the girl told a teacher, who told Urquhart, the principal.  He interviewed the alleged victim and then called her parents to the school.

According to the suit, the school’s principal told the parents that he believed their daughter.  He identified the alleged attacker as a “special ed student,” “a player,” and a school-of-choice student being scouted by universities, the lawsuit said.  The parents took the principal’s words to mean he did not want the incident reported to police.  They called police the next day.  Fifteen days later, another girl reported being assaulted by the athlete in her car in the school parking lot, the lawsuit said.  Kent County prosecutors charged the athlete with one count of fourth-degree criminal-sexual conduct involving each of the girls. He eventually pleaded guilty to a misdemeanor charge of assault and battery and was ordered to attend Kent County’s Adolescent Sexual Offender Treatment Program, which he had attended earlier as a juvenile, the lawsuit claims.

The lawsuit said the school didn’t protect the girl from harassment.  She was scheduled to spend sixth-hour class with the alleged attacker.  Instead, she stayed in the guidance counselor’s office.  On Nov. 20, 2010, the school changed the alleged attacker’s schedule, according to the lawsuit.

The girl said the alleged attacker and other students harassed her at school, and on the Internet.  “Other students posted vulgar, demeaning, derogatory and harassing messages to and about plaintiff on Facebook,” her attorneys wrote.

Once charges were filed, school officials suspended the athlete.  His mother, however, responded by filing a notice she intended to sue because it could result in his loss of a college scholarship, the girl’s lawsuit said.

Source: mlive, 4/18/13, By John Agar

[Editor's Note: NWLC's press release announcing its involvement in the suit states:

The suit was filed against Forest Hills School District for failing to respond to the sexual assault of a high school student on school premises and the subsequent cyber-bullying and on-campus harassment suffered by the teenage girl.  As a result, the young woman lost academic class time and grew increasingly fearful as the bullying and harassment escalated.  Her grades plummeted, she dropped off the soccer team and cheer leading squad, became isolated--even from her friends--and was forced to transfer to a new school the following year to avoid her attacker. 

Doe's legal complaints contains four counts: (1) Title IX -  The School’s Deliberate Indifference to Alleged Sexual Harassment; (2) Title IX - Retaliation by Withholding Protections Otherwise Conferred by Title IX; (3) § 1983 - Fourteenth Amendment Equal Protection Clause; and (4) § 1983  - Municipal Liability - Failure to Train and Supervise as to Response to Sexual Assault.]

NC bill would bar school districts from suing county over annual budget appropriation

The Charlotte Observer reports that the North Carolina legislature is considering legislation that would end a school board’s ability to sue its county board of commissioners over school funding.  According to state Sen. Warren Daniel, who introduced SB 674, titled “Prohibit Costly Local Government Litigation,” the bill is intended to keep taxpayers’ dimes from going to legal fees that can reach into the hundreds of thousands when the two boards don’t agree on how much, or how little, local money commissioners give schools.

However, local school officials say the bill would take away a key recourse for them in fighting commissioners when school boards feel they are being underfunded.  SB 674 rewrites the general statute to read:

The board of commissioners has sole authority to determine the adequacy of county funds provided for the operating and capital expenses of a local school administrative unit.  Nothing in this Chapter shall be construed to place a duty on the board of commissioners to provide more funds for the operating or capital expenses of a local school administrative unit than it deems necessary and appropriate to fund the public schools.

The North Carolina School Boards Association is opposing the bill.

Source: The Charlotte Observer, 4/10/13, By Cheryl Shuffler

[Editor's Note: In July 2010, Legal Clips summarized an article in Courthouse News Service reporting that the Montebello Unified School District had filed suit in Los Angeles County Superior Court against Los Angeles County alleging the county is illegally letting local development agencies take a "staggering" amount of money that should be going to public schools.  The school district claimed it would be cheated of more than $200 million in the next 45 years, and that other schools and the state itself will be cheated of billions of dollars if the practice is allowed to continue.]

U.S. Supreme Court rules employer offer of settlement moots FLSA collective action

According to a report from Thomson Reuters News & Insight, the U.S. Supreme Court, in a 5-4 split, ruled that a nurse who sued her employer for unpaid wages could not seek to press her case on behalf of similarly treated but yet-to-be-identified workers once the care facility where she worked offered to settle her claim. The decision will likely have limited practical applicability but could spark further debate about whether the justices treat collective actions brought under the 1938 Fair Labor Standards Act (FLSA) differently from traditional class actions.

In Genesis Healthcare Corp v. Symczyk, Docket No. 11-1059, the five justice majority found that the case against the nursing and rehabilitation provider should be dismissed because its offer to Symczyk of the unpaid wages to which she alleged she was entitled effectively ended her stake in the case. “We conclude that respondent has no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness,” Justice Clarence Thomas wrote for the majority.

Genesis offered Symczyk a “Rule 68″ settlement of $7,500 to cover the sought unpaid wages, plus reasonable attorneys’ fees and costs.  After Symczyk did not respond to the offer, Genesis filed a motion to dismiss because, it argued, it had offered to settle her individual claim, making her stake in the lawsuit moot, and no other employees had signed on as plaintiffs.

Rule 68 of the Federal Rules of Civil Procedure is designed to encourage settlements.  In wage-and-hour claims brought under FLSA, similarly situated workers must proactively opt in to be covered by a collective action.  In traditional class actions, the inclusion of similarly treated members of a class is presumed.  Symczyk’s attorneys said that Genesis was trying to “pick off” the lead plaintiff in what could become a larger collective action lawsuit over unpaid wages once other workers were identified.

A federal district court sided with Genesis and dismissed the case.  The Third U.S. Circuit Court of Appeals reversed.  Though the three-judge panel found that Symczyk’s individual claim had been satisfied, it said Rule 68 was not meant for strategic use in picking off lead plaintiffs.  The Supreme Court disagreed with the 3rd Circuit panel, finding that though Symczyk had the authority under FLSA to pursue collective relief on behalf of similarly affected employees, her role in the case became moot once her claim was satisfied.

Justice Elena Kagan, in a dissenting opinion for the minority, assailed the majority for failing to consider the underlying question of whether Symczyk’s lack of response to the settlement offer rendered her claim moot.  ”So, a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theory.  And a note to all other courts of appeals: Don’t try this at home,” Kagan wrote.

Source: Thomson Reuters News & Insights, 4/17/13, By Amanda Becker

[Editor's Note: The August 2012 Inquiry & Analysis, which is available to COSA members, provided a U.S. Supreme Court update. The article discussed Symczyk on pages7-8 . Focusing on the implications for school districts, the artcle stated:

If the Supreme Court finds that the case is moot, employers (including school districts) may be able to avoid costly collective action lawsuits under Section 216(b) of the FLSA by settling with the primary plaintiff, and any other similarly situated employees initially named in the suit, before the court conditionally certifies the case as a collective action and before any other plaintiffs subsequently opt in to the suit.  A determination to the contrary would require school districts to go forward with such suits, if at least one other similarly situation employee opts in after conditional certification.

In the Mondaq News Alerts on April 17, 2013, Kevin S. Ranlett writes:

Symczyk is of substantial importance to any business that faces collective or class actions of any stripe.  Despite the dissent's assertion that the Court's holding is limited to this case only, the logic of the Court's decision applies to all FLSA collective actions—and potentially to class actions in general.  Symczyk thus promises to give businesses a powerful method of settling named plaintiffs' claims in the context of meritless collective and class actions.  If a business is willing to pay the named plaintiff's demand in full at the very outset of the case, the Supreme Court's decision suggests that a plaintiff may be barred from pursuing a collective or class action and subjecting the business to the enormous costs of class-wide discovery in an effort to coerce a settlement.]