Federal appellate court rejects discharged finance director’s claims of discrimination and retaliation against Pennsylvania district

Dellapenna v. Tredyffrin Easttown Sch. Dist., No. 11-1394 (11th Cir. Oct. 28, 2011)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) has ruled that a school district’s former finance director failed to present sufficient evidence of Title VII employment discrimination or retaliation based on her termination. The panel determined that she had failed to make a prima facie (on its face) showing of discrimination based on ethnicity, national origin or gender and, further, that she failed to present any evidence creating an inference of pretext. Lastly, it found that the retaliation claim fell largely because she failed to show how her termination was causally related to her complaint of discrimination.

Facts/Issues: Caroline Dellapenna was employed by Tredyffrin Eastown School District (TESD) as director of finance. Her tenure as finance director was brief and tempestuous. Shortly after Dellapenna assumed the position, TESD’s outside auditor uncovered a range of accounting irregularities, including over a million dollars of overstated accrued expenses.

In September 2006 Michael Azzara, TESD’s Chief Operations Officer and Dellapenna’s supervisor, was informed by the personnel director about disconcerting complaints regarding Dellapenna’s performance. Specifically, two employees working under Dellapenna had alleged that she regularly abused and berated her staff while instructing them to use improper accounting methods. Azzara subsequently interviewed the staff members and documented their grievances.

Suspecting Dellapenna had committed fraud, TESD hired an independent auditor to conduct an investigation. The auditor found no fraud, but determined that the accounting department’s procedures were not “in conformity with generally accepted accounting principles;” that Dellapenna was “aware” of this; and that she intentionally flouted prevailing accounting methods without the school district’s knowledge or approval.  The auditor concluded that the accounting department was “dysfunctional;” Dellapenna and her staff maintained “poor communication;” “personality conflict issues” abounded; and that this dysfunction needed to be addressed before the accounting department could perform its appointed tasks adequately.

Shortly after the auditor released the report (but after the audit investigation had begun), Dellapenna complained to TESD’s superintendent that she was being subjected to a hostile work environment and was mistreated because of her “age, gender, race, and/or ethnic background.” A committee investigated her complants, concluding there was no evidence of discrimination. It also concluded that Dellapenna’s “substantial misconduct” justified her termination. Waters then informed Dellapenna that TESD was firing her for cause, based on her “willful, wanton and/or gross misconduct as well as material and substantial dishonesty.” She waived her right to a hearing.

Instead, Deallpena filed suit against TESD in federal district court, alleging alleging race, gender, and age discrimination, as well as unlawful retaliation under Title VII and state law. The district court granted summary judgment to TESD, concluding that Dellapenna’s evidence did not satisfy the prima facie requirements for a discrimination claim. Even if she had established a a prima facie case, the district court found, TESD had articulated a legitimate, nondiscriminatory reason for its actions, and Dellapenna had failed to show that these reasons were a pretext for discrimination. The district court also found Dellapenna’s allegations of hostile work environment and retaliation meritless. Dellapenna dropped the age discrimination claim.

Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision. It concluded that the evidence did not support Dellapena’s discrimination or retaliation claims. It first addressed her discrimination claim based on race, national origin and gender. The panel found that she found fell short of establishing Title VII’s required elements:

(1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the school district treated similarly situated persons who are not members of the protected class—i.e., persons who behaved like Dellapenna but who are neither female, ethnically Chinese, nor from China—more favorably than her.

The panel also found that Dellapena had not carried her burden of showing that the legitimate reason proffered by TESD for terminating her was a pretext for discrimination for two reasons. First, the evidence failed to show TESD treated any male or non-Chinese employee more favorably than her, much less a “similarly situated” one who improperly discharged his job responsibilities and mistreated subordinates.  Second, Dellapenna failed to show a causal link between her protected status and her termination.

The panel pointed out that while the temporal proximity of an employee complaining of discrimination and a subsequent termination may be sufficient to show a causal link in some cases, here the overwhelming weight of the undisputed evidence demonstrated both Dellapenna’s accounting and management insufficiencies.  It concluded her discrimination claim was based on “only her subjective suspicions of discrimination, which are not sufficient to create an issue of material fact (which would preclude summary judgement).”

The panel also concluded that Dellapena had failed to rebut TESD’s clearly articulated legitimate and nondiscriminatory reasons for terminating Dellapenna, i.e., that she verbally abused her staff, intentionally misstated accounting records, and ordered her subordinates to do the same. An alleged comment by Azzara about working women, the panel found, was not sufficient to support an inference of pretext because he was not a decisionmaker.

Lastly, the panel held that Dellapenna’s arguments regarding retaliation were “baseless.” As with the discrimination claim, she failed to establish a prima facie case of retaliation because there was no showing that her termination was causally related to her complaints of discrimination. In addition, like the discrimination claim, even if she cleared the prima facie hurdle, Dellapenna would be unable show pretext.

Dellapenna v. Tredyffrin Easttown Sch. Dist., No. 11-1394 (11th Cir. Oct. 28, 2011)

[Editor's Note:  A plaintiff's discrimination or retaliation claim often fails when he/she is unable to show that discriminatory animus is the cause of the adverse employment action, and that the ostensible reason is mere pretext.  See a recent Tenth Circuit ruling in Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty, No. 10-5122 (1oth Cir. Oct. 19, 2011), summarized in Legal Clips here.

In July 2011, Legal Clips summarized the decision of a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) in  Bennuzi v. Board of Educ. of the City of Chicago, holding that a female custodian employed by Chicago Public Schools (CPS) failed to state a valid claim for gender discrimination under Title VII, but did state a valid claim for retaliation under Title VII. The panel concluded that the custodian’s discrimination claim failed because she did not make the “requisite showing of gender-based discriminatory animus.” The facts revealed personal dislike between the custodian and the principal, but did not support the inference that the principal’s animus was based on the custodian’s gender.

On the other hand, the panel found that there were issues of material fact regarding the adverse actions the principal took after the custodian filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the suit at hand. Those actions, the notice of disciplinary action, and an hours-restricting memo, occurred after the custodian gave her deposition in the suit.]

Federal appellate court rules parents could not raise futility of administrative process as exception to IDEA’s exhaustion of remedies requirement

Doe v. Dublin City Sch. Dist., No. 10-3492 (6th Cir. Oct. 28, 2011)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) has ruled that the parents of a special education student could not maintain a cause of action under the Individuals with Disabilities Education Act (IDEA) because they had failed to exhaust their administrative remedies as the statute requires. The panel rejected the parents’ argument that they were excused from the exhaustion requirement because resort to the administrative process would have been futile or inadequate to protecting their child’s rights.

Instead, the panel concluded that the parents could not raise futility as an exception to IDEA’s exhaustion requirement because they did not “attempt to fully invoke the administrative process by requesting a due process hearing.” It pointed out that the burden of proving futility rested on the parents after the school district raised the failure to exhaust requirement as an affirmative defense.

Facts/Issues: According to the allegations of the complaint, Anthony Doe attends school in the Dublin City School District (DCSD). When his academic performance declined and he began exhibiting emotional and behavior problems, his parents requested his school develop an individualized education plan (IEP) pursuant to IDEA. Specifically, Doe’s mother requested that DCSD conduct a Multi-Factored Evaluation of Doe. The principal refused to conduct the examination because it was too late in the school year. Doe’s parents organized a private psychiatric evaluation, which resulted in the diagnoses that Doe suffers from Asperger’s Disorder, Attention Deficit Hyper Activity Disorder, Anxiety Disorder, and Major Depressive Disorder.

The parents provided the diagnoses to the school and again asked it to conduct a Multi-Factored Evaluation so that the school could begin to develop an IEP for Doe. The principal did not inform Doe’s mother of a scheduled meeting to discuss the Does’ request until the day of the meeting.  Although the Does were allegedly told that the meeting would be rescheduled, it took place without either parent in attendance.  During the meeting, DCSD concluded Doe did not have a disability.

DCSD provided the parents with written notice of the decision. The parents informed the principal that they were appealing DCSD’s refusal to evaluate Anthony and were requesting a hearing. The parents do not assert, however, that they filed a formal, written request for a due process hearing at that time. DCSD informed the parents that they would have to participate in a Request for Assistance Meeting before proceeding further. During this meeting, the School District agreed to contact Doe’s doctors and prepare a behavior intervention plan with their input. DCSD warned the Does that even if it concluded that Anthony needed an IEP, it could not put the plan into place until at least October of the new school year.

In the interim, DCSD stated that it would have a nearly complete behavior intervention plan that would sufficiently address Doe’s needs such that he would be able to return to school in August when the new year began. DCSD provided the Does with a behavior intervention plan on August 5. The Does allege that the plan was not adequate to address Anthony’s disability or allow him to return to school. On August 13, the parents submitted a second request for the School District to conduct a Multi-Factored Evaluation and develop an Individualized Education Plan. With the start of the new school year rapidly approaching, the parents met with DCSD on August 19. DCSD continued to refuse to acknowledge that Doe had a disability and again denied the parents’ request for an IEP. Although DCSD had promised to provide a more detailed behavior intervention plan at this meeting, it failed to do so. Without a sufficient plan in place, the parents allege that Anthony was unable to attend school.

The parents then filed suit in an Ohio federal district court against DCSD alleging violations of IDEA and other federal disabilities laws. The district court entered an interim agreed order that required DCSD to conduct a Multi-Factored Examination and, if appropriate, prepare an IEP for Doe by September 11. The parties complied with the agreed order and DCSD has now satisfactorily accommodated Anthony’s needs.

After the parties resolved Doe’s educational needs, the School District moved to dismiss the suit based on the Does’ failure to exhaust administrative remedies. The parents filed a motion for nearly forty thousand dollars in attorney’s fees and costs, arguing that they were the prevailing party by virtue of getting DCSD to acquiesce to the terms in the agreed order. The district court granted DCSD’s motion to dismiss based on the parents’ failure to exhaust administrative remedies, and denied the Does’ motion for attorney’s fees.

Ruling/Rationale: The Sixth Circuit panel affirmed the lower court’s decision. It pointed out a party generally must exhaust its administrative remedies before bringing a lawsuit under IDEA, but an exception to the requirement exists “if it would be futile or inadequate to protect the plaintiff’s rights.” Acknowledging that DCSD had raised the exhaustion requirement as an affirmative defense, as recognized by a number of federal appellate circuits, it emphasized that the parents had the burden of demonstrating that compliance with the exhaustion requirement would be futile or inadequate.

The panel found that because the parents “did not request a due process hearing before filing this lawsuit,” it could not ”conclude that the administrative process would have been futile or inadequate.” It rejected the parents reliance on Massey v. District of Columbia, 400 F.Supp.2d 66 (D.D.C. 2005), in support of their argument that the administrative process would have been futile.

It found that unlike the present case, in Massey, the school district had already developed an IEP for the student and failed to follow the procedures required by IDEA after the student’s parents requested a due process hearing.  In the present case, while DCSD ’s  “conduct [was] far from exemplary, it has not clearly failed to follow the requirements of [IDEA] in a manner that  demonstrates that resort to the administrative process would have been futile.”

Finally, the panel pointed out that while the parents in Massey had alleged violations of IDEA’s time requirements, the parents in the present case made no such allegations. It, therefore, concluded that “the time limits in [IDEA] do not apply and [DCSD] was not required to comply with them.” As a result, the panel held DCSD’s ”failure to act more quickly does not establish that the administrative process would have been futile or inadequate to address the [parents’] complaints.”

Doe v. Dublin City Sch. Dist., No. 10-3492 (6th Cir. Oct. 28, 2011)

[Editor's Note: In August 2011, Legal Clips summarized the decision in Payne v. Peninsula Sch. Dist., in which a majority of the U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP), sitting en banc (all active judges participating in consideration and decision of the case), ruled that the Individuals with Disabilities Education Act’s (IDEA) exhaustion of administrative remedies requirement is not jurisdictional and, instead, is an affirmative defense that must raised by a school district or is waived.  The school district in Payne is petitioning the Supreme Court to hear the case.]

Connecticut Supreme Court hears argument in suit challenging law allowing state takeover of low-performing school districts

The Connecticut Mirror reports that the Connecticut Supreme Court heard oral arguments in a suit challenging the state’s takeover of Bridgport’s public schools.  In response to Justice Peter T. Zarella’s question regarding whether there is any standard the state applies in determining whether to take over control of schools in a failing district, Mark F. Kohler, an assistant attorney general representing the State Board of Education (CBE), acknowledged that there is no standard except that the district fails to meet federal testing benchmarks for two consecutive years. That would mean 34 districts are currently eligible for state intervention, which is about 20% of districts in the state.

CBE Chairman Allan Taylor said none of these other districts have approached him yet asking for state intervention. Regardless, Kohler said the law is straightforward on the role of the State Department of Education (CDE) in this. “They had the authority to act,” he said. Bridgeport’s (elected) board was ousted in July 2011 in a split vote by the state board, following the request of Mayor Bill Finch and six of the local board members.

A key dispute in the takeover of Bridgeport school district is whether the state can interfere in matters delegated as local responsibilities in the state constitution. Also at issue is whether local elected board members can turn over their seats to the CDE before taking training to “improve their operational efficiency and effectiveness as leaders of their districts’ improvement plans,” as required under state law. The state argues board members have the right to waive this requirement.

Attorney Michelle Mount, who is representing those opposing the takeover, argued that the board members could not simply ignore state law. “They just decided to abdicate their duties. They should have resigned.” If the court reverses the state takeover and reinstates the board, it’s not clear what the effect would be. Four of the nine members’ terms are set to expire at the end of the year, and the election for their seat would have been in 11 days.

Source: Connecticut Mirror, 10/27/11, By Jacqueline Rabe Thomas

[Editor's Note: Subscribers can check out "School Governance Councils" by Robert Rader and Patrice McCarthy, which appears in the November 2011 issue of NSBA's American School Board Journal.  The article discusses a governance structure taking hold in Connecticut and other states designed to improve student achievement.  Governance councils are made up of parents, teachers, community members and the school's principal.

In October 2010, Legal Clips summarized an article in the Star-Ledger reporting that New Jersey’s Acting Commissioner of Education, Rochelle Hendricks, had testified before a joint legislative committee that the state’s school takeover statute does not authorize gubernatorial or mayoral participation in efforts to reform a district under state control.

Stephen DeVita's research paper addressing mayoral take-overs of schools, "Audacity, Audacity, Always Audacity: The Changing Face of School Governance ―Turnaround Schools," is available to COSA members here.  Mr. DeVita's paper, presented at the 2011 School Law Seminar, focuses on the Cleveland experience.]

Michigan Senate approves anti-bullying legislation

The Michigan Senate has passed legislation that requires school districts to develop anti-bullying policies, says the Detroit Free Press. Democrats in the Senate and the father of the student for whom the bill is named, however, object to language inserted at the last minute. One of the bill’s provisions will require school districts to have procedures in place to address bullying complaints. But the bill now also says its requirements do not “prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil’s parent or guardian.”

Kevin Epling, whose son, Matt, killed himself in 2002 after being bullied, said that the added language will allow anyone to bully a student and cite their religious beliefs.”This is just unconscionable. This is government-sanctioned bigotry,” said Epling. He added that he is  ”ashamed” that lawmakers added the language at the last minute.

Michigan would join at least 45 other states that have laws requiring public schools to adopt anti-bullying policies under the legislation passed Wednesday by the Republican-led Senate. The bill was approved by a 26-11, party-line vote and now advances to the Republican-led House. Democrats say the measure wouldn’t protect students and want a more detailed bill that outlines characteristics for which students can’t be bullied, such as sexual orientation, race and weight.

Republican supporters of the proposal say requiring districts to develop policies would be a key step toward ensuring that efforts are being made to clamp down on students harassing classmates. They argue that all students would be equally protected under the proposal. But Democrats were angered by the new language, saying it goes in the opposite direction of stopping bullying. The policies would apply to cyberbullying, but only cyberbullying that occurs using a device owned or under the control of a school district. Epling said that concerns him because most cyberbullying happens on personal electronic devices.

Source: Detroit Free Press, 11/3/11, By Lori Higgins

[Editor's Note:  Although Michigan is one of only a handful of states not (yet) to pass anti-bullying legislation, the State Board of Education has encouraged school districts to adopt anti-bullying policies, and provided a model, for years.  The model policy defines "bullying" and "harassment" to include behavior based on "any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity or expression; or a mental, physical, or sensory disability or impairment; or by any other distinguishing characteristic, or is based upon association with another person who has or is perceived to have any distinguishing characteristic."  The Michigan Association of School Boards' Resolutions and Bylaws committee recently passed an amendment to encourage member boards to consider the State Board of Education's model policy on bullying when reviewing, amending or adopting their local policy.  See NSBA's chart on state educational agency model policies and other resources on bullying to compare states.

In October 2011, Legal Clips summarized an article in the Lodi News-Sentinel reporting that Governor Jerry Brown had signed an anti-bullying bill into law that will create an anti-bullying system at all California schools.  The bill, known as “Seth’s Law,” requires school districts to institute anti-harassment policies and an online complaint procedure, with shorter timelines for investigating claims of bullying.]

Parent files suit against Indiana district over fees for bus service

Franklin Township public schools is being sued by parent Lora Hoagland over the school district’s decision to eliminate its free bus service and replace it with a nonprofit company that charges a fee for bus transportation, reports the Indianapolis Star. Hoagland, who is seeking reinstatement of free bus service, is also asking the Marion Superior Court to grant the suit class-action status so it can be brought  on behalf of other parents in the district.

The school district is confident it will prevail, but Hoagland seems to have some support. State Rep. Mike Speedy has asked the Indiana attorney general’s office to issue an opinion on the legality of the district’s new arrangement, and he’s considering drafting legislation that would prevent such arrangements in the future. The suit alleges that by allowing an outside organization to charge parents for bus service, the school district is violating a provision of Indiana’s constitution that says public education must be tuition-free.

Franklin Township cut bus service after local taxpayers rejected a referendum in May that would have brought the district an extra $13 million each year for seven years. Superintendent Walter Bourke said attorneys reviewed the decision and the district is on “solid legal ground.” “Any time that you make a decision that is not popular, you run the risk of people seeking legal enforcement of their point of view,” Bourke said. “I think we’re going to prevail if we ever get a day in court.” Speedy, on the other hand, believes the constitutionality of charging for bus service is a gray area of the law.

Central Indiana Educational Service Center (CIESC), which handles busing to Franklin Township Schools, charges parents $47.50 per month for the first child and $40.50 for each additional child. In 2010, the attorney general’s office issued an opinion saying that schools cannot charge bus fees, but this situation is slightly different because CIESC, not the schools, is charging parents. “The point is, parents shouldn’t have to pay for bus service, regardless of who’s charging them a fee,” said one of Hoagland’s attorneys, Tom Blessing . “That’s what taxes are for.”

Hoagland and Speedy question why the district can’t use some of the $17 million in its rainy day fund to cover the $2 million to $3 million annual cost of running the bus service for the next few years. Bourke said that if the district depletes its rainy day fund, it will no longer be able to use that money to back up its general fund, which covers teacher salaries and educational programs.

Bryan Corbin, spokesman for the attorney general’s office, said the office is reviewing the issue but wouldn’t say whether or when it would issue an opinion. Even if the office says Franklin Township Schools violated the law, its opinion would be nonbinding, so the district wouldn’t have to reinstate transportation.

Source: Indianapolis Star, 11/3/11, By Carrie Ritchie

[Editor's Note: In July 2010, Legal Clips summarized an Indianapolis Star article reporting that Indiana Attorney General Greg Zoeller had issued an advisory opinion that charging a fee to ride the bus to a public school violates the state’s constitution. While the attorney general’s conclusion might be good news for cost-conscious parents, experts predicted it might push some cash-strapped school districts to reduce bus service or eliminate it altogether for most students. Zoeller likened bus fees to tuition and said such fees violate a student’s right to a free public education. “[The opinion is] not legally binding in any way; it is legal guidance,” said Molly Butters, spokeswoman for the attorney general’s office.

See the editor’s note in the July 2010 post for background on the 2006 Indiana Supreme Court ruling that school district’s imposition of a $20 student services fee violated the state constitution.

In April 2011, Legal Clips summarized the Indiana Court of Appeals’ decision in Roman Catholic Archdioese of Indianapolis v. Metro Sch. Dist. of Lawrence Twp., holding that a state statute that requires a school district to provide transportation for nonpublic school students who reside along the district’s bus routes does not require the school district to provide transportation of those students to and from the nonpublic school they attend.]

Wisconsin Assembly approves bill that makes viewing pornography on school computers grounds for revoking teacher’s license

According to an Associated Press (AP) report in the Wausau Daily Herald, the Wisconsin Assembly has passed a bill that would make the viewing of pornography on a school district’s computer reason to revoke a teacher’s license. Under current law, a license can be revoked for immoral conduct, defined as conduct that is contrary to commonly accepted moral or ethical standards and that endangers the health, safety, welfare, or education of any student.

The bill, which  passed on a voice vote by the Assembly, makes clear that immoral conduct includes using the school’s computer to view, seek or download pornographic material. The legislation also requires the state Department of Public Instruction to post the name of the license holder under investigation on its website and any results of the inquiry. The bill now goes to Gov. Scott Walker for consideration.

Source: Wausau Daily Herald, 11/1/11, By AP

[Editor's Note: Meanwhile on November 1, 2011, Associated Press reported in WISC3 Madison that a bill that would allow Wisconsin schools to discriminate against convicted felons when considering whether to hire or fire them has temporarily stalled in the state Assembly. Current law allows for employers to discriminate against convicted criminals only if their offense directly relates to the job in question. Under the proposed legislation, it would be legal for any public or private school to refuse to hire or to fire any convicted felon, whether their crime relates to the job or not. It would only apply to felons who have not been pardoned.]

Maryland State Board of Education considering recommendation that student-athletes maintain 2.0 GPA

The Maryland State Board of Education (MBE) is considering adopting a recommendation, reports the Baltimore Sun, that would require students who play sports in high school to maintain a minimum 2.0 grade point average (GPA) to be eligible. Currently, 16 school districts in the state have such a requirement. A statewide committee of superintendents, principals and coaches made the recommendation

Some school board members expressed concern that such a standard might increase the dropout rate among students who are drawn to school for the chance to play on a team. “I think maybe it is time to rethink” the academic standards, said school board member Donna Hill Staton. “Why is athletics a privilege rather than part of their personal growth?”

A bill passed by the Maryland General Assembly last session requires the board to submit recommendations on minimum academic standards by the end of the year, but those standards do not have to include a specific GPA. If approved by MBE later in 2011, the minimum standards would become recommendations for school systems but would not be a regulatory requirement. Students would not have to maintain a cumulative 2.0 throughout high school, but a 2.0 in the marking period before and during the time they play on a team.

The question board members struggled with was whether a minimum GPA would be a motivation for students to work harder in classes to play sports or a barrier for others who might otherwise stay in school. School board member Ivan C. A. Walks suggested that the board get more creative in the way it approaches the GPA requirement. He said the board could consider allowing students to fulfill their high school physical education requirement by playing a sport.

Currently, even those students who are on a varsity team for four years must take a year of physical education to graduate. But students can take specialized physical education courses, such as fitness and conditioning. “Maybe you can get a grade in basketball,” Walks said. “If you can get a grade in conditioning, then can’t you get a grade in basketball?” School board member Kate Walsh asked the committee to draft exceptions to the minimum GPA for students who have special circumstances.

Source: Baltimore Sun, 10/25/11, By Liz Bowie

[Editor's Note: In November 2010, Legal Clips summarized the decision of a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) in Doe v. Silsbee Indep. Sch. Dist. affirming the lower court’s dismissal of the claims against both the district attorney and the school defendants. Citing a Texas Supreme Court decision, the appellate panel noted that students do not have constitutionally-protected interests in participating in extracurricular activities. As a result, it found that the student could not assert her position on the cheerleading squad as a basis for a due process claim of deprivation of a protected property interest.]

Pennsylvania Senate approves school voucher bill

The Philadelphia Inquirer reports that the Pennsylvania Senate, in a 27-22 vote, has approved a bill that would provide private school tuition vouchers to low-income students in failing public schools.  The proposed legislation would allow families with incomes of $29,000 or less to transfer their children to private or parochial schools by offering them state-funded vouchers of anywhere from $5,765 to $13,905, depending on the district. In the second year, the vouchers would also be offered to low-income students already attending private schools.

The bill mirrors many of the school choice proposals that the Gov. Corbett administration supports, and the governor called the bill  ”a strong education reform package that will help improve opportunities for thousands of school children throughout Pennsylvania.” However, the bill faces obstacles in the state House, which  has shown considerably less enthusiasm for tackling vouchers.  House Speaker Sam Smith made no promise to take up the voucher bill before the end of the year.

In addition to the voucher program, the Senate bill would boost the number of charter schools by giving school boards expanded powers to convert public schools to charters. It would also set new academic and fiscal standards. Another provision in the legislation would lift the $75 million cap on the Educational Improvement Tax Credit (EITC), which gives tax breaks to businesses that provide tuition funding for low-income students. The EITC program would increase to $100 million, with more hikes planned in future years. In all, 17 districts in the state have schools that would qualify for vouchers, according to a list prepared by the Senate Education Committee.

Source: Philadelphia Inquirer, 10/27/11, By Angela Couloumbis and Dan Hardy

[Editor's Note: The Pennsylvania School Boards Association provides background and analysis of taxpayer-funded voucher proposals at its site, including an explanation of the Pennsylvania proposals in the context of a national agenda to enact voucher initiatives.  PSBA provides resources for school leaders to read and share with other school officials and tax-payers.

In October 2011, Legal Clips summarized an Associate Press article in the Houston Chronicle reporting that state Rep. Matt Huffman was sponsoring a bill in the Ohio legislature that would provide vouchers for private-school tuition for low- and middle-class parents regardless of school performance and for qualifying families of nearly 200,000 current private school students. Vouchers currently are offered for students at schools that perform poorly. “I think the system should be based on need, not geography,” Huffman said. “I’m trying to fill a gap for people who don’t have a real option for a brick-and-mortar school and equalize the inequities in the current program.”]

Federal appellate court rules district’s decision not to renew contract did not violate employee’s due process or free speech rights

Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty, No. 10-5122 (1oth Cir. Oct. 19, 2011)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Tenth Circuit has ruled that an Oklahoma school board did not a violate a former high school secretary’s procedural due process rights by failing to conduct an impartial non-renewal hearing. The panel also concluded that the employee had failed to state a valid claim for First Amendment retaliation, or age or sex discrimination.The panel decided that the employee had failed to establish that her signing of a petition calling on the state grand jury to investigate school board members was a motivating factor in the non-renewal of her contract.

Facts/Issues: Louanne Cybert was employed by Independent School District I-050 (ISDI-050) as the high school’s secretary. After Ron Meadows was elected to the school board on a platform that included terminating a number of staff members, he made it known that Cybert was among those he wished to dismiss. In the fall of 2008, the board initiated a financial investigation that led to ISDI-050′s treasurer being terminated. Her successor concluded that the school district had a financial crisis. As a result, the school board informed 11 support employees, including Cybert, that their contracts might not be renewed for the 2009-10 school year. Cybert was the only employee who requested and was given an nonrenewal hearing.

After the hearing, the board went into executive session, which the superintendent attended. It found that ISDI-050 was facing a financial crisis requiring budget cuts, including a reduction in force among office staff. The board, therefore, voted to not to renew Cybert’s contract. After the end of the 2008-09 school year, the board decided to renew the contracts of the other 10 support employees notified of possible termination. In addition, the board retained the position of high school secretary, but did not offer it to Cybert. Instead, the board hired another person.

Cybert filed suit in federal district court against ISDI-050 and four members of the school board. She alleged that the nonrenewal was conducted in a manner that deprived her of her procedural due process rights. Cybert also alleged that the nonrenewal vote was in retaliation for her exercise of free speech rights because she had signed a state-court petition calling for a grand jury investigation into the activities of board members. She also alleged the non-renewal of her extra-duty contract violated Title VII  and the Age Discrimination in Employment Act (ADEA). The district granted the defendants summary judgment on all the claims.

Ruling/Rationale: The Tenth Circuit panel affirmed the lower court’s decision. Addressing the due process claim first, it stated that Cybert had raised four grounds on which she was denied procedural due process: (1) a biased tribunal; (2) the superintendent attended the executive session; (3) she was not allowed to confront or cross-examine the assistant treasurer, even though his financial calculations were the asserted basis for not continuing her employment; and (4) the hearing was a sham because there was no financial crisis.

After noting that Cybert could not assert her impartial tribunal claim against Meadows because “[a]s the district court noted … Meadows was not a member of the Board on June 8, 2009, and he took no part in the Board’s decision not to renew Cypert’s contract,” the panel focused on the remaining three board members. In the case of board member Jackson, it found “the only admissible evidence of Jackson’s bias is one statement to [the interim superintendent], about a year before the hearing,” which was not a substantial showing of actual bias with regard to the issue facing the [b]oard,” i.e., the financial crisis, when it decided to dismiss Cybert.

The panel found nothing in the record pointing to personal animosity or other bias against Cypert by the remaining two board members, Traster and Hendrix, beyond their association with Meadows and Jackson. The panel stressed that their association alone was an insufficient basis to find disqualifying bias. The panel then turned to the claim that the superintendent’s presence at the executive session tainted the process. Pointing out that “[o]ther courts have concluded an administrator’s mere attendance in a board’s executive session does not violate due process,” it concluded that because there was no evidence of anything beyond the superintendent’s presence, it could not find a due-process violation. The panel, likewise, found the confrontation/cross examination claim unavailing.

The panel rejected Cybert’s fourth argument that the hearing was a sham because there was no actual financial crisis. It found nothing in the record that “even remotely suggests [the assistant treasurer] harbored a bias against Cypert or deliberately manipulated his figures to support a nonexistent financial crisis.” A possibly faulty analysis did not demonstrate that the hearing was a sham. While the panel acknowledged that retaining the position of high school secretary, but not rehiring Cybert, was “somewhat troubling,” it concluded that fact standing alone provided “little to no evidence regarding the decision-making process.”

Moving to the retaliation claim, the panel applied the the five-step framework established by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), and Pickering v. Board of Education, 391 U.S. 563 (1968).  Specifically, it focused on the requirement that the protected speech was a motivating factor in the adverse employment action. The panel found that, with respect to her participation in an investigation regarding Meadows’ son, “the record contains only general allegations failing to identify with particularity any statements or actions sufficient to satisfy her burden to identify the specific instances of speech underlying her claim.”  With respect to her signature on the grand jury petition, it concluded Cybert had failed to show the board was aware of signature, or any causal link to her non-reemployment.

Lastly, the panel agreed with the district court that Cybert had  failed “to establish a prima facie case of sex or age discrimination, and even if she had, she failed to produce any evidence that defendants’ asserted reason for non-renewal of the contract was a pretext for the type of discrimination addressed by Title VII and the ADEA.”

Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cnty, No. 10-5122 (1oth Cir. Oct. 19, 2011)

[Editor's Note: In August 2011, a Tenth Circuit panel rejected the due process and retaliation claims asserted by ISDI-050's former treasurer, who was terminated after a financial investigation. The panel's opinion in Bunch v. Indep. Sch. District I-050 of Osage Cnty, ruled that the treasurer had no property interest in her employment on which to based a due process claim because she served as the pleasure of the school board.

Like the panel in Cybert, the Bunch panel concluded that the former treasurer's retaliation claim, which was also based having signed the petition, failed for much the same reason Cybert's claim did: she failed to establish that her signature on the petition was a motivating factor behind the termination.]

Federal district court in Pennsylvania grants school district summary judgement in African-American students’ Title VI suit

Blunt v. Lower Merion Sch. Dist., No. 07-3100 (E.D. Pa. Oct. 20, 2011)

Abstract: A federal district court in Pennsylvania has granted a school district summary judgment in a suit brought by a group of current and former African-American students who claim they were identified as disabled and placed in special education based on their race in violation of Title VI of the Civil Rights Act of 1964. After reviewing the record, the district court concluded that the students had failed to present evidence that the procedural irregularities they cited were related to their race. “To infer these … students were discriminated against merely because they suffered adverse action and are members of a protected class would render the prima facie requirement of intent meaningless.”

Framing the issue as “whether blacks are unfairly assigned as disabled,” the court stressed that in order for the students to continue the case under Title VI, they  ”[m]ust raise at least some reasonable inference that they were placed into classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.” It concluded that it could not infer the students were wrongfully placed in special education because of their race based the statistical evidence the students offered. The court determined that the students’ Fourteenth Amendment claim failed for the same reasons.

Facts/Issues: A group of African-American current and formers students attending school in Lower Merion School District (LMSD) filed suit against LMSD. Although the students had brought claims under the the Individual with Disabilities Education Act (IDEA), those claims were dismissed along with a number of others. The only remaining claims alleged Title VI and Equal Protection violations by LMSD. In response to LMSD’s motion for summary judgement, the students argued that they are not disabled and were wrongly placed in special education programs based on their race.  Although the court acknowledged that the students’ assertions were a “stark” departure from their most recent amended the complaint that the students are disabled, it assumed for purposes of the motion that all but two of the students are not disabled.

The students argued that as a result of their wrongful and racially discriminatory identification as disabled they were denied opportunities to take more challenging  courses in preparation for college. They relied heavily on statistical evidence of the disproportionate number of African-American students receiving special education services.

Ruling/Rationale: The district court granted LMSD’s motion for summary judgment on both the Title VI and Equal Protection claims.

The court stated that in order for the students to proceed on their Title VI claim, they must produce sufficient evidence showing a prima facie  case (sufficient until contradicted or overcome by other evidence).  They must show: (1) they are members of a protected class; (2) they are qualified to continue in pursuant of their education; (3) they suffered an adverse action; and (4) such action occurred under circumstances giving rise to an inference of discrimination. If LMSD proffers a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the students to present evidence from which a jury could reasonably: (1) disbelieve the articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the action. The court noted that the Supreme Court had established in Alexander v. Sandoval, 532 U.S. 275 (2001) that there is no private cause of action for disparate impact under Title VI. Nonetheless, it found that evidence of disparate impact was a “important starting point” for determining the existence of intentional discrimination.

The court stressed that the students’ claim relied primarily on statistical evidence; and such evidence alone is insufficient to establish a prima facie case of intentional discrimination. The students had conceded that point. The students cited a number of procedural irregularities in the school district’s evaluation of students for special education programs, which they contended raised genuine issues of material fact about discriminatory intent. The court conceded that such irregularities may raise the inference of racial discrimination, but the students must still present evidence that those irregularities were related to their race.

The court concluded that the students had failed to show that LMSD’s actions, including errors in evaluation, occurred under circumstances giving rise to an inference of discrimination. The court stated: “[The students] simply have not put forth any evidence that supports their contention that they were ‘segregated’ intentionally into inferior educational programs in violation of Title VI.” In closing, the court stressed that, unlike a claim under IDEA, the Title VI framework requires the plaintiffs to “raise at least some reasonable inference that they were placed in classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.” The court disposed of the Equal Protection claim on the same ground.

Blunt v. Lower Merion Sch. Dist., No. 07-3100 (E.D. Pa. Oct. 20, 2011)

[Editor's Note: In June 2010, Legal Clips summarized the decision in Doe v. LMSD, in which a federal district court ruled in another case involving the Lower Merion School District.  The court held that LMSD’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, or the Fourteenth Amendment’s Equal Protection Clause. The court concluded that the redistricting plan, which took away the ability of students who live in the area of the school district with the highest concentration of African-American students to attend the high school of their choice, did not discriminate on the basis of race in violation of the Equal Protection Clause, section 1981 or Title VI.]