Federal appeals court rules parents of diabetic student stated valid claim of retaliation under disability laws based on principal’s child abuse report of parents after they requested accommodations

A.C. v. Shelby Cnty. Bd. of Educ., No. 11-6506 (6th Cir. Apr. 1, 2013)

Abstract: A U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) three-judge panel has ruled that the parents of a diabetic student have stated a valid claim for retaliation under the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation ACT (§ 504 ) based on the school’s Principal reporting the parents for suspected medical abuse of the student to the state department of child services (DCS) after the parents requested certain disability accommodations for the student.  In particular, it found, unlike the federal district court, that the parents had satisfied the adverse action and causation elements of a retaliation claim, and had rebutted as pretextual the non-retaliatory reasons for the DCS reports proffered by the school district.

Facts/Issues: A.C., who suffers from Type 1 diabetes, attended Bon Lin Elementary School (BLES).  Because of the nature of A.C.’s disease and her age, she required close supervision from the school nurse and her teacher. The relationship between A.C.’s parents and BLES officials started on the wrong foot and never improved.  Throughout her time at BLES, there was tension between the parents and the BLES Principal and staff.

The parents requested a number of accommodations prior to A.C. starting kindergarten.  The day before a meeting with the parents to discuss their requests, the Principal expressed her frustrations with the parents in the following voice mail:

“This is Kay Williams from Bon Lin.  [A.C.'s mom] is here causing all kinds of confusion and [A.C.’s teacher] has already broken down and cried.  This woman is out to lunch… I don’t know what to do with this lady anymore.  She does not reason or have any common sense.  So you know that since I am the one with common sense, I am going to have a little problem with her.”

The Principal’s voice mail was intended for the school nurse, but the Principal accidentally left it on the parent’s home phone.  The parents, meanwhile, had filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR) the day before the misdirected voice mail.

As a result OCR’s intervention, the Shelby County Board of Education (SCBOE) provided the parents with almost all the accommodations they requested, including a full time nurse and training for A.C.’s teachers.  The parents’ request that A.C. be manually tested four times a day in her classroom instead of in Bon Lin’s clinic was denied, but would remain a bone of contention through A.C.’s second grade year.

Nurses at the school were assigned the responsibility of writing Individualized Health Plans (IHP) for students.  A.C.’s parents insisted, however, that they write the IHP for A.C., and the school acquiesced.  The nurses were upset at this, two quit because of their concerns, and a third threatened to do the same.

A.C.’s first grade teacher, who at the time was untrained on Type 1 diabetes, saw A.C. with candy and drew the conclusion that the parents were committing medical abuse by failing to feed A.C. properly, a belief she shared with the Principal.  School staff began privately discussing putting A.C. into homebound services.  At about the same time, the parents renewed their request that A.C.’s blood tests be done in the classroom, because students in the health room would be sick.  In response, the school nurse wrote in her log that “students in [A.C.'s] class may be ill” and “If such a problem, may need to reconsider school itself!”  A section 504 meeting was scheduled to address the parents’ request.

One day the school nurse found A.C.’s blood sugar low.  The nurse remarked to A.C.’s teacher that they were fortunate A.C. had not passed out.  The teacher became distraught, began hyperventilating and crying, and had to be sent home.  The Principal then emailed SCBOE’s superintendent, director of student services, and director of coordinated health asking for guidance, stating that the teacher was “having an anxiety attack from the constant harassment of [A.C.'s parents], the teacher was worried about A.C.’s “roller coaster [glucose] levels,” A.C.’s parents were “not monitoring [A.C.] at home,” and that A.C. “comes in [to school with] very high [glucose] and then crashes.” The Principal’s email concluded by stating that she was “ready to report the family to DCS” because “[w]e care about this child and the parents do not.”

All three officials concurred in the Principal’s recommendation to file a child abuse report, and the Principal called DCS.  She identified A.C.’s parents as abusers and provided two basic rationales for the allegation of medical child abuse.  First, she said that A.C. was being “sent to [Bon Lin] with cookies, Kool-Aid, and candy, which makes her sugar shoot up to a very high level.” Second, she reported that A.C.’s “diabetes is not being monitored at home, and [she had] documentation on this neglect.”  The Principal emphasized that she worried the abuse could be “fatal” and that two previous nurses had left in fear that A.C. would die, with the third nurse now also thinking of leaving for the same reason.  Ten days later, the Principal escalated her allegations considerably.  She told a DCS investigator that “the family wants something horrible to happen to [A.C.] at school.”  She explained that A.C. “could die at school,” and that “the parents are just looking for a lawsuit.”

DCS investigated and closed the case, concluding that the “medical maltreatment” allegation was “unfounded.”  The parents subsequently filed suit against SCBOE in federal district court, alleging that the DCS Reports were made in retaliation for the attempts of A.C.’s parents to secure accommodations for A.C.’s disabilities under the ADA and § 504.

Focusing on the DCS reports, the district court granted SCBOE’s motion for summary judgment, concluding that the parents failed to prove that the DCS reports constituted an “adverse act.”

Ruling/Rationale: The Sixth Circuit panel reversed the lower court’s decision and remanded the case.  The panel pointed out that the parents’ retaliation claims were based solely on the Principal’s reports to DCS.  Because the parents did not present any direct evidence of retaliation, only evidence of intent and motive, the retaliation claim was analyzed under the McDonnell Douglas burden-shifting approach.  Initially, the parents must present a prima facie case of retaliation by establishing that (1) they engaged in a protected activity under the ADA and Section 504; (2) SCBOE knew of this protected activity; (3) SCBOE took adverse action against them; and (4) there was a causal connection between the protected activity and the adverse action.  The panel noted that the burden of establishing a prima facie case in a retaliation action is easily met.  Establishing the prima facie case results in a presumption that the defendants engaged in retaliation.  To rebut that presumption SCBOE must show that it had a legitimate, non-discriminatory basis for the DCS reports.  If SCBOE does that, the burden shifts back to the parents to “prove by a preponderance of the evidence that the legitimate reasons offered by [SCBOE] were not its true reasons, but were a pretext for retaliation.”

Noting that SCBOE conceded that the requests for accommodation, including the classroom-testing requests, were protected under Section 504 and the ADA, and that it was fully aware of the parents’ requests, the panel addressed the prima facie element of adverse action, noting that it was the sticking point in the parents’ claim.  The panel stressed that in order to be adverse, “a retaliatory action must be enough to dissuade a reasonable person from engaging in the protected activity; ‘petty slights or minor annoyances’ cannot qualify.”

The panel found that the “type of intrusive investigation that Tennessee officials must conduct of such parents’ homes and children to complete a DCS investigation could be powerfully dissuasive in its own right.”  The panel also noted that the Sixth Circuit and other courts have treated the making of such reports as adverse.  Based on the record, it determined that “the actions of the Principal in making DCS Reports rose well above a petty slight or minor annoyance and constituted adverse action.”

The panel rejected the district court’s reliance on Cox v. Warwick Valley Central School District, 654 F.3d 267 (2d Cir. 2011) for its conclusion that the parents were required, at the prima facie stage, to disprove that the Principal  made the DCS Reports protectively and in good faith.  It pointed out Cox was a First Amendment retaliation case, not an ADA/Section 504 retaliation case, and so did not involve the McDonnell Douglas burden-shifting approach.

The panel, therefore, stated:

SCBOE may raise Cox in its defense, but at the pretext stage, not the prima facie stage.  For the same reason, the district court erred in relying—at the prima facie stage of the proceedings—on Tennessee law governing the duty to report child abuse.  In short, we conclude that Plaintiffs adequately established the adverse-action element of their prima facie case.

The panel next examined the causation element.  Noting that the burden of proof at this stage was minimal, it concluded: “The evidence in this case, including both temporal proximity [the short duration of time between the parent's request for accommodations and the filing of the DCS report] and evidence calling into question the truthfulness of the reports themselves, is sufficient to meet [the parents'] minimal burden to put forth evidence permitting a reasonable inference of causation.”

SCBOE argued that so long as the Principal would have made a DCS report regardless of the parents’ requests, the parents cannot meet the causation requirement.  Ruling that the issue was one for the jury, the panel emphasized that the jury would be considering not “a” hypothetical DCS report, but rather the actual reports that the Principal filed, “reports which did not focus on alerting DCS officials to the glucose fluctuations that SCBE so emphasizes on appeal but rather pinned the blame for those fluctuations on A.C.’s parents’ alleged neglect and active misconduct, allegedly born in part out of a desire to see A.C. harmed.”  As a result, “[i]t would be permissible for a reasonable jury to conclude that those reports would not have been made inevitably, without the accommodation requests.”

Turning to SCBOE’s proffered non-retaliatory reasons for filing the DCS reports, the panel stated that the ten reasons offered comprised three broad categories: (1) reasons related to the duty to report itself;  (2) reasons relating to A.C.’s health generally; and (3) reasons relating to J.C. and B.C.’s treatment of A.C.  The panel concluded that SCBOE had carried its burden of articulating a non-retaliatory basis for the DCS reports, which shifted the burden back to the parents to show SCBOE’s reasons were a pretext for retaliation.

The panel stated the parents could prove pretext by demonstrating by a preponderance of the evidence that SCBOE’s reasons “(1) lack a basis in fact, (2) did not actually motivate the DCS Reports, or (3) were insufficient to motivate the DCS Reports.”  After reviewing the parents’ offers of proof, it concluded that “a reasonable jury could find by a preponderance of all of this evidence that SCBOE’s stated concerns about A.C.’s health were pretextual, and that the DCS Reports were actually motivated by the school’s well-established displeasure with A.C.’s parents and their accommodation requests.”

However, the panel stressed that based on the same facts “a reasonable jury could decide that SCBE’s concerns were not pretextual.”  To survive summary judgment, however, the parents need “only rebut, not disprove,” SCBOE’s proffered reasons.

The panel also discussed the “honest belief” rule–which would require dismissal of the parents’ case if the Principal honestly believed the reasons she cited for filing the abuse report.  The Sixth Circuit follows a modified version of rule, asking whether the defendant “made a reasonably informed and considered decision before taking an adverse . . . action.”  Because the material facts are in dispute, a reasonable jury could conclude that neither of the core allegations made in the initial DCS Report was “reasonably informed” and that both comprised errors “too obvious to be unintentional.”

The panel assumed without deciding that Tennessee’s reporting statute, providing a presumption of good faith to reports, was applicable to the case, even though the plaintiffs had brought federal actions.  It noted: “Given the generous view of facts and inferences required at the summary judgment stage, the nature of [the Principal's] statements to DCS, and the fact that the core issue here turns on [the Principal's] intent in making those statements, we conclude that a reasonable jury could still find for [the parents].”

A.C. v. Shelby Cnty. Bd. of Educ., No. 11-6506 (6th Cir. Apr. 1, 2013)

 [Editor's Note: In August 2012, Legal Clips summarized a decision by a Sixth Circuit panel in R.K. v. Board of Educ. of Scott Cnty. , vacating a Kentucky federal district court’s decision granting summary judgment to a school board, but affirming summary judgment in favor of the district’s superintendent, in a suit by a diabetic student claiming the board’s refusal to allow him to attend his neighborhood school violated Section 504 of the Rehabilitation Act (Section 504), the Americans with Disabilities Act (ADA), and the Fourteenth Amendment’s Due Process and Equal Protection Clauses.]

Teacher suspended, New York district apologizes for anti-Semitic writing assignment

According to Time, school officials at Albany High School have apologized after students were assigned the task of “explaining why Jews are evil” as part of a persuasive writing class.  The English teacher responsible for the assignment has been placed on leave and could be terminated.

Students taking the course were asked to watch and read Nazi propaganda, and then pretend their English teacher was a fascist official whom they must convince of their loyalty.  They were told they “must argue that Jews are evil, and use solid rationale from government propaganda to convince me of your loyalty to the Third Reich.”

Participants were urged to use information garnered from their history classes as well as “any experiences you have” to present a damning appraisal of the Jewish people.  However, around one-third of the 10th graders involved refused to take part in the assignment, prompting a speedy response from school staff.

“I would apologize to our families,” Albany Superintendent Marguerite Vanden Wyngaard told a meeting called in response to the incident.  “I don’t believe there was malice or intent to cause any insensitivities to our families of Jewish faith.”

The teacher responsible for the controversial class could face further disciplinary action including possible dismissal, reported the Albany Times Union.  Vanden Wyngaard did not say when or if the district would allow the teacher back in the classroom, but suggested it may not happen before the end of the year.

Source: Time, 4/15/13, By Charlie Campbell

[Editor's Note: Nazism and symbols associated with the Nazi ideology foment racial, ethnic, and religious divisiveness.  Public reaction is usually swift and overwhelmingly unfavorable.  In December 2010, Legal Clips summarized an article in the Los Angeles Times reporting that MM Compound Inc., the licensee of the Metal Mulisha brand of clothing, was threatening to sue Murrieta Valley Unified School District (MVUSD) over its ban on a clothing line inspired by a local stunt dirt bike team and adorned with logos resembling Nazi insignia.  School district officials objected to the lightning bolt “S” logo which is similar to those worn by Nazi military forces.

In October, 2010, Legal Clips summarized a ruling from the 6th Circuit Court of Appeals that teachers do not have First Amendment Free Speech rights in curricular matters. ]

Latino advocacy group sues California district over at-large elections of Board members

The Los Angeles Times reports that MALDEF, a leading Latino legal civil rights organization, is suing the ABC Unified School District (ABCUSD) claiming the district is illegally diluting the voting clout of Latinos and barring them from elective office by using an at-large electoral system for school board races. The suit alleges that no Latino has been elected to the seven-member board in ABCUSD since 1997, although the ethnic group makes up nearly one-fourth of adults of voting age.  The student population is 42% Latino, 26% Asian, 11% Filipino, 10% African American, 7% white, and 1% native Hawaiian or Pacific Islander.

Under the at-large system, candidates can run from any part of the district and be selected by any voter.  All seven current school board members reside in Cerritos; three are Asian, two white, and two Filipinos.  The lawsuit demands a change to a district electoral system, in which board members would be elected to represent particular areas.  ”With the growing Latino student population nationwide, it is particularly important that our democratic processes work to secure adequate opportunity for the Latino community to elect its representatives to participate in school governance,” said MALDEF President Thomas A. Saenz.

ABCUSD Superintendent Mary Sieu said the district concluded after an extensive analysis of four board elections from 2003 to 2009 that the current electoral system does not unlawfully dilute Latino voting clout under the California Voting Rights Act.  The analysis, which has not been publicly released, found that voters did not strictly vote for candidates of their own ethnic background,she said.  Sieu also said that candidates elected from the entire district represent all students, rather than more narrow territorial interests.  “We feel the at-large system has worked for us,” she said.

Source: Los Angeles Times, 4/11/13, By Teresa Watanabe

[Editor's Note: In June 2010, Legal Clips summarized an article in the Press-Enterprise reporting that like other school districts around the state Riverside County’s school districts are scrutinizing their racial demographics to determine if minority communities are under-represented during school board elections in violation of state law. The inquiry was prompted by a 2008 lawsuit against Madera Unified School District (MUSD), which brought to the forefront the problem of nonwhite voters being disenfranchised because of the way some school districts elect board members.

In March 2013, Legal Clips summarized an article in Education Week reporting that a major provision of the Voting Rights Act of 1965 that affects hundreds of school districts, especially in the South, recently went before the U.S. Supreme Court.  The historic law requires states and other jurisdictions covered by Section 5 of the Act to obtain federal approval for any change in voting practices or procedures.  For school systems, the law covers periodic alterations to voting districts for school board members or changes in the makeup of a board, such as switching from at-large to single-member districts.  The 2006 renewal of the law by Congress extended for 25 years Section 5′s special treatment of states and jurisdictions with a history of voter discrimination.]

Public Advocate’s suit claims NYC schools send students to emergency room for behavioral problems

According to the Amsterdam News, Public Advocate Bill de Blasio is filing a lawsuit against the City of New York in state court, demanding the city release data on students who were sent to the emergency room because of behavioral problems at school.  The suit charges most schools do not provide adequate mental health services and, instead, resort to 911 to deal with behavioral outbursts.  The Public Advocate, an oversight position created by the New York City Charter, is the second highest ranking official in New York City government.

Source: Amsterdam News, 4/9/13, By Trudy Tomlinson

[Editor's Note: The Public Advocate's press release provides additional background on the lawsuit.

The Article 78 petition  (the legal complaint) alleges that thousands of students who should have been disciplined and treated in a school setting are being sent to the emergency room at the parents’ expense, which results in clogged hospitals and leaves the children traumatized.  In July 2012, de Blasio requested information on the use of Emergency Medical Services (EMS) in schools from 2005-2010, including the age, ethnicity and behavioral problem of each child, as well as the amount billed to parents after each incident. After the City failed to comply, de Blasio joined forces with Queens and Bronx Legal Services in legal action to secure the information. Nine months later, the City has still failed to produce documents to the Public Advocate’s Office, prompting the suit.  The complaint contains one count charging New York City with wrongful denial of records.]

Legal Clips on hiatus until April 17th

Legal Clips will be on hiatus from Wednesday, April 10th, through Tuesday, April 16th, for the annual NSBA Council of School Attorneys’ School Law Seminar.  Legal Clips will return on Wednesday, April 17th, with new posts for our subscribers.

Union sues Idaho district claiming teachers pressured to accept furloughs violating state law

The Idaho Press-Tribune reports that the Nampa Education Association (NEA) has sued the Nampa School District (NSD) claiming teachers were pressured to sign an addendum to their master contracts agreeing to as many as four voluntary furlough days between January and May 2013.  NEA alleges the school district’s action was unlawful because the addendum contracts were not written contracts approved by the state superintendent.

New Arizona law limits use of “seclusion rooms”

ABC News reports that Arizona Gov. Janice Brewer has signed a law providing strong new restrictions on the use of so-called “seclusion rooms” in schools, i.e.,  closet-sized rooms where children with behavioral disabilities such as autism were being locked up as punishment.  ”It is chilling to imagine an Arizona school child being shut away in a padded room, no larger than a closet, for hours on end,” Brewer said.  Arizona joins more than 30 other states that impose rules on the restraint of students in public schools.

The new Arizona law prohibits schools from using confinement on children unless their parents specifically consent to that form of discipline.  The sponsor of the legislation, state Rep. Kelly Townsend, said she considers the measure effectively a ban on the use of the isolation rooms.  ”The parent now can decide if this kind of discipline is okay for their child and it gives them the option to opt out,” Townsend said.  ”I trust the parents are not going to permit this.”

U.S. Rep. George Miller (D-CA) proposed national legislation that would create a uniform standard on restraint for the nation’s schools, legislation that has failed to even receive a committee vote over the past three years.

A 2009 study by federal auditors reported hundreds of instances between 1990 and 2009 where improper restraint led to injuries, and another study that same year, by the National Disability Rights Network, chronicled dozens of specific cases of young children, many of them autistic, being suffocated or badly injured while being improperly restrained.  There is also little known about how many schools, in how many states, utilize isolation rooms, Miller said.

Source: ABC News, 4/8/13, By Angela M. Hill, Matthew Mosk and Brian Ross

[Editor's Note: In January 2013, Legal Clips summarized an article in the Columbus Dispatch reporting that the Ohio State Board of Education planned to adopt the state’s first policy governing seclusion and restraint in public schools.  Although the rules require schools to keep records of how often and why educators place children in seclusion rooms or physically restrain them, those records remain private.  Only the parents of the child who was secluded or restrained, or the Ohio Department of Education, are informed of such incidents. 

In September 2012, Legal Clips summarized an article in the StarNewsonline.com reporting that Rick Holliday, Assistant Superintendent for Support Services, had announced that New Hanover County Schools’ use of seclusion rooms to deal with students’ aggressive behavior does not violate North Carolina law. According to Holliday, the U.S. Department of Education’s Office for Civil Rights (OCR) completed an investigation of the district’s seclusion rooms, finding that the district had no non-compliance issues with North Carolina’s Greenblatt Act, which gives schools strategies, such as seclusion rooms, to deal with students’ aggressive behavior.]

Maryland Legislature Approves Bill Repealing One School Board’s Authority to Hire Superintendent

The Washington Post reports Maryland lawmakers gave final approval Saturday to a bill restructuring the Prince George’s County school system.  The bill, which now heads to the governor, would give Prince George’s County Executive Rushern L. Baker III (D) more authority over the struggling system, including the power to select its new superintendent, but stops well short of the complete takeover he sought.

The House vote Saturday to give Baker partial control over Maryland’s second-largest school system followed several days of give-and-take behind the scenes.  Several key lawmakers, including House Speaker Michael E. Busch, balked at Baker’s initial request to put him, rather than an elected school board, in charge of the superintendent and the system’s $1.7 billion budget. The compromise measure, approved last week by the Senate, would allow Baker to select the superintendent, appoint three members to the school board and name the board chair and vice chair.

Baker said the compromise plan was a step in the right direction for a system that is searching for its eighth superintendent in 14 years.  “It puts more accountability on our office,” he said. “It’s not everything we wanted but a good chunk of what we asked for.”

Source: The Washington Post, 4/6/13 by John Wagner and Ovetta Wiggins

[Editor's Note: The Board of Education of Prince's George's County opposed the County Executive's bill, stating in written testimony that it "is wrong for the County, it’s wrong for the teachers, parents, and schoolchildren."  The Board's entire statement on Baker's proposal is posted on its website.]

Federal appeals court finds Kentucky out-of-district student entitled to Goss hearing prior to removal and cell phone search unconstitutional

G.C. v. Owensboro Pub. Sch., No. 11-6476 (6th Cir. Mar. 28, 2013)

Abstract: A U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) three-judge panel unanimously ruled that a school district violated an out-of-district student’s due process rights when it removed him from school without providing him with a pre-expulsion hearing.  Two of the three judges found a school official had violated the student’s search and seizure rights when she viewed text messages on his cell phone that had been properly confiscated. All three judges also rejected the student’s § 504 of the Rehabilitation Act claim

Facts/Issues: G.C. was an out-of-district student enrolled at and attending Owensboro High School (OHS) pursuant to a reciprocal agreement between Owensboro Public Schools (OPS) and Daviess County Public School District, where G.C.’s parents lived.  During his time at OHS (2005 to 2009), G.C. was subject to a number of disciplinary actions. G.C had episodes of drug use, anger outbursts, depression, and suicidal thoughts, which school officials knew about.

G.C. attended OHS as an out-of-district student pursuant to a inter-district agreement and school board policy which stated: “The continued enrollment of non-resident students in the District’s schools is subject to the recommendation of the school Principal and the approval of the Superintendent.”

Following the 2008-09 school year, the OHS principal recommended that G.C. not be permitted to return, based on G.C.’s conduct during the year.  OPS Superintendent Larry Vick did not accept that recommendation, however, deciding to give G.C. one more chance.  The superintendent informed G.C.’s parents that he would allow G.C. to return to OHS for the 2009-10 school year, but warned that if there was another disciplinary incident Vick would immediately revoke G.C.’s privilege of attending OHS as an nonresident student and G.C. would be required to return to his home school.  In September 2009, G.C. violated OHS’s cell phone policy when he was observed texting in class. The teacher confiscated the phone, and brought it to Assistant Principal Anita Brown. Brown read four text messages on G.C.’s phone, because she knew that G.C. had previously considered suicide and was prone to anger outbursts, and she was concerned about his mental state and the possibility that he might hurt himself.

Based on this incident, the principal recommended that G.C.’s out-of-district privilege be revoked, and the superintendent agreed.  G.C.’s parents were notified, and were informed that they could appeal Superintendent Vick’s decision.  In October 2009, G.C.’s parents and their attorney met Vick, OHS’s principal, and other school officials. Vick told the parents that G.C. “had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class.”  G.C. continued to have the right to attend school in his home district, Daviess County.

G.C. then filed suit against OPS in federal district court, alleging violations of his First, Fourth, and Fifth Amendment rights and state law.  He amended his complaint to include a claim under § 504 of the Rehabilitation Act. The district court granted OPS summary judgment on all federal claims and declined to exercise supplement jurisdiction over the state law claims.

Ruling/Rationale: The Sixth Circuit panel reversed the lower court’s grant of summary judgment to OPS on G.C.’s due process and Fourth Amendment search claims, and remanded the case to the district court.  It affirmed the district court’s grant of summary judgment on the § 504 claim

Addressing the due process claim, the panel pointed out that pursuant to the Supreme Court’s decision in Goss v. Lopez, the Sixth Circuit decision in Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 (6th Cir. 1988), and a Kentucky statute, it was well established that a student facing expulsion “has the right to a pre-expulsion hearing before an impartial trier-of-fact.”  Since G.C. did not in fact receive a hearing, the panel concluded that the fate of his due process claim rested on “whether G.C. was actually expelled from Owensboro High School.”  G.C. argued that “revocation of the privilege to attend an out-of-district school is the functional equivalent of an expulsion,” and maintained that an Opinion of the Kentucky Attorney General endorses this position.  OPS, on the other hand, contended that the superintendent ”merely revoked G.C.’s privilege to attend Owensboro High School as an out-of-district student,” an action that was lawful pursuant to discretion granted the superintendent in the policy to remove an out-of-district student for any reason and at any time.  The district court had agreed with OPS, stating “[b]ecause G.C. attended Owensboro High School at the unfettered discretion of the Superintendent and because he did not reside in that School District, G.C. did not have a property interest in an education within the Owensboro Public School District.”

The panel disagreed.  It first found that the superintendent’s discretion is limited to “enrollment and continued enrollment of out-of-district students,” not attendance.  The panel stated that “the distinction between ‘attend’ and ‘enroll’ under Kentucky law is well documented,” citing the Kentucky Supreme Court decision in Jefferson Cnty. Bd. of Educ. v. Fell, __ S.W.3d __ No. 2011-SC-000658-DGE, 2012 WL 4243659 (Ky. Sept. 20, 2012).

Applying that distinction to the present case, the panel stated:

[W]e understand the term “enroll” to refer to a student’s registration at the beginning of the academic year and the term “attend” to denote a student’s presence during the academic year.  We thus conclude that Board Policy 09.125 confers to Vick the authority to deny an out-of-district student’s application for enrollment at the beginning of the academic year, even if the student had enrolled as an out-of-district student in previous years, but it does not extend to Vick the power to remove unilaterally and without process a student from the Owensboro Public School District after the academic year has commenced.

It also noted that this interpretation conformed with the Opinion of the Kentucky Attorney General #79-327, which stated explicitly that “termination of the privilege of attending a nonresident school during the school year is in fact an expulsion and must be so handled and effectuated only after a hearing before the ‘foreign’ board of education.”

Turning to G.C.’s Fourth Amendment search claim, the two judge majority noted that the Sixth Circuit has “yet to address how the T.L.O. [reasonable suspicion] inquiry [New Jersey v. T.L.O., 469 U.S. 325(1985)] applies to the search of a student’s cell phone.”  It rejected OPS’s reliance on J.W. v. DeSoto County School District, No. 2:09-cv-00155-MPM-DAS, 2010 WL 4394059 (N.D. Miss. Nov. 1, 2010), for a broad reading of the T.L.O. standard that when a student’s cell phone is confiscated for improper use, it is “reasonable for a school official to seek to determine to what end the student was improperly using that phone.”

The majority stated:

Such broad language, however, does not comport with our precedent.  A search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another.  Not all infractions involving cell phones will present such indications.

Stressing that the focus of “the T.L.O. standard is reasonableness, as evaluated by the circumstances of each case,” the panel declined “to adopt the broad standard set forth by DeSoto.”  Instead, the majority agreed with G.C. that the fact-based approach demonstrated in Klump v. Nazareth Area School District, 425 F. Supp.2d 622 (E.D. Pa. 2006), “more accurately reflects our court’s standard than the blanket rule set forth in DeSoto.”

OPS argued that because the school officials knew of G.C.’s  past drug use and suicidal ideations, they had reason to believe they would find evidence on his phone of unlawful activity or find indications that he would harm himself. Rejecting OPS’s rationale, the panel found that “general background knowledge of drug abuse or depressive tendencies, without more, [does not enable] a school official to search a student’s cell phone when a search would otherwise be unwarranted.”

The majority concluded: “The defendants have failed to demonstrate how anything in this sequence of events indicated to them that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school.”  It also rejected OPS’s contention that the claim failed because G.C. had not established that he suffered any harm as a result of the search.

Finally, the panel concluded G.C. had failed to support of his § 504 claim, because there was no evidence that any of the defendants’ actions were discriminatory.  It upheld the grant of summary judgement to the defendants on that count.

Judge Alan Norris concurred in the panel’s due process ruling and dissented on the issue of the cell phone search stating:

There is a reason that the Supreme Court in New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985), concluded that the legality of a search in the school setting hinges on reasonableness in light of all the circumstances: school officials are acting in loco parentis and, as such, they have a keen interest in student welfare and safety. For that reason, they must be allowed more leeway under the Fourth Amendment than is appropriate outside the school setting.

Based on the teacher’s knowledge of G.C., i.e. fights, drug use, suicidal thoughts, the dissenting judge believed the assistant principal’s search, which was limited to reading four text messages created that day, was reasonable under T.L.O.

G.C. v. Owensboro Pub. Sch., No. 11-6476 (6th Cir. Mar. 28, 2013)

[Editor's Note: The Kentucky Supreme Court decision, Jefferson Cnty. Bd. of Educ. v. Fell, cited by the Sixth Circuit panel, was summarized by Legal Clips in September 2012. The state supreme court's five justice majority stated that the “deliberate act by our General Assembly in 1990 undercuts any suggestion that ‘enroll’ in the final sentence of the statute connotes a mandate that Kentucky children be enrolled for attendance at their nearest school.”  It found this position was further supported by unsuccessful attempts in the state senate, via Senate Bill 3 and Senate Bill 9, to add back the “for attendance” language into KRS 159.070.  In addition, the majority determined that its reading of the statute was consistent with state law and prior case law regarding the authority local school boards have in school assignment.

In December 2010, Legal Clips summarized the district court's opinion in DeSoto holding that school officials did not violate a student’s Fourth Amendment search and seizure rights when they searched the contents of the student’s cell phone after confiscating it pursuant to school district policy prohibiting the possession and use of cell phones at school.]

Ohio district removes portrait of Jesus from school citing litigation costs

The Associated Press (AP) reports in USA Today that Jackson City Schools (JCS) has removed a portrait of Jesus that has hung in Jackson Middle School (JMS) since 1947 because of concerns about the potential costs of a federal lawsuit against its display.  JCS Superintendent Phil Howard said the decision was made after the district’s insurance company declined to cover litigation expenses.  The Hi-Y Club, a Christian-based student service club, owns the portrait.

“At the end of the day, we just couldn’t roll the dice with taxpayer money,” Howard said.  ”When you get into these kinds of legal battles, you’re not talking about money you can raise with bake sales and car washes.  It’s not fair to take those resources from our kids’ education.”

The American Civil Liberties Union of Ohio (ACLU-OH) and the Freedom from Religion Foundation (FFRF) had sued on behalf of a student and two parents, calling the portrait an unconstitutional promotion of religion in a public school. An ACLU-OH spokesman said JCS disclosed its decision at a federal court hearing.  ”The case is still open; there was no actual ruling (by the court),” ACLU-OH spokesman Nick Worner said.  But he added there would be no reason to pursue a court order if the portrait isn’t put back up.

A U.S. District Court order issued on April 3, 2013, stated that the plaintiffs had agreed to temporarily withdraw their motion for a preliminary injunction against the portrait’s display once they verify the school has removed it, and that the two sides had until the end of the day April 11 to settle the case.  Hiram Sasser, an attorney with the Liberty Institute that helped defend JCS, said that the Hi-Y Club could file its own lawsuit for the right to display the portrait, but he didn’t know its plans.

Source: USA Today, 4/3/13, By AP

[Editor's Note: In February 2013, Legal Clips summarized an article in The Columbus Dispatch reporting that the Jackson City Board of Education was considering whether to continue to defend the display of a portrait of Jesus or remove it in response to a lawsuit.

In March 2013, Legal Clips summarized the decision by a  Pennsylvania federal district court in FFRF v. Connellsville Area Sch. Dist. , denying a school district’s motion to dismiss a suit challenging the constitutionality of a Ten Commandments display on the premises of a public junior high school.  After an extensive review of Establishment Clause jurisprudence, the court ordered the suit to proceed to the discovery stage, stating that “a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs extend beyond conclusory, ipse dixit assertions to at least having stated a facially plausible claim.”]