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Student sues Minnesota district over suspension from sports for “terroristic” tweet

According to the Minneapolis Star Tribune, Tyson Leon, who attends Shakopee High School (SHS), has filed suit in federal court against the school district and the Minnesota State High School League alleging that his suspension from sports over a tweet is endangering his chances of landing a college scholarship for wrestling.

Leon, who has been suspended from sports on three previous occasions, ran into trouble in late August after SHS officials discovered he had tweeted “I’m boutta drill my ‘teammates’ on Monday.”  Leon insists “drilling” means to tackle someone hard and that is what he was talking about when he sent the tweet.  School officials said the tweet constituted a terroristic threat.

The suit asserts that the tweet was not a threat and that the suspension violates his constitutional rights.   His lawsuit claims that he is being recruited by North Dakota State University for wrestling.  His attorney, Meg Kane, told the court, “The thing that has compelled him through high school and will compel him through college is participation in sports.”

Carla White, an attorney for the school district, countered that the suspension was only for the football season and was never meant to prevent Leon from wrestling with the team.  White says the suspension resulted from Leon’s fourth violation and that he and his family received a letter after his third violation reminding them that violations are cumulative and could cost him his eligibility.  “Every single school administrator who read [the tweet] believed that he was threatening harm,” White said.

Assistant Superintendent John Bezak and Athletic Director John Janke want to meet with the Leon to discuss the school district’s and Minnesota State High School League’s rules and for him to sign an agreement that he understands those rules.

Leon and his family say they are encouraged that the school is ready to let Leon return to the ring.  The court ordered the attorneys for the district and the league to prepare the agreement before a settlement conference scheduled for this week.

Source: Minneapolis Star Tribune, 10/23/13, By Pat Pheifer

[Editor's Note: In October 2012, Legal Clips summarized an article in the Student Press Law Center reporting that Granite City High School Principal Jim Greenwald had suspended 10 students for calling a teacher a “MILF” on Twitter.] 

Wyoming school district denies newspaper’s request for unredacted climate survey

The Laramie Boomerang reports that Albany County School District No. 1 (ACSD) is asking a state court to uphold the school district’s refusal to provide the Boomerang with unredacted comments to a district-wide climate survey. The newspaper requested that ACSD release the results, under Wyoming’s public records law, and leave in the names of employees in leadership positions, such as principals, administrators and board members, associated with the respondents’ comments.

ACSD’s attorney denied the request, citing several provisions of Wyoming’s public records law, including personnel file exemptions, the possibility for injury to the public interest,  and the deliberative process privilege.  The deliberative process privilege is a common-law principle that states certain internal records of the executive branch of a government are immune from disclosure.

The school district’s counsel, Megan Overmann Goetz, argues that delivering unredacted comments could harm the public interest by producing a chilling effect in future surveys as well as infringing on employee privacy and liberty interests.  “Delivering unredacted comments to the public after promising employees … that their comments would remain confidential will dramatically chill any future attempts on soliciting forthright feedback within ACSD.”

Ms. Goetz also argues that releasing unredacted records could be contrary to the public interest insofar as it “constitutes a libelous act.”  “It is reasonable to assume some statements may be critical, place an individual in a false light, or otherwise be false and inflammatory and thereby potentially libelous.”

The Boomerang’s attorney, Bruce Moats, said the names of leadership personnel should be left in comments because the intent of the survey and comments is to evaluate district policy and practice, which is closely tied to the performance of administrators.  “The comments are overwhelmingly talking about the policy and practice of the administration and how it has affected [respondents] as staff members,” Moats said.

Moats said it’s hard to see how unredacted names of leadership could cause a chilling effect, especially given that the redacted comments have already been made public to the Boomerang and district teachers.  Anonymity, built into the survey from the outset, is a strong enough defense against chilling, Moats said.

Source: Laramie Boomerang, 10/15/13, By Chilton Tippin

[Editor's Note: In October 2010, Legal Clips summarized an article in The Taos News reporting that the New Mexico Attorney General’s office (AGO) had issued a letter finding that the Taos Municipal School District (TMSD) violated the state’s Inspection of Public Records Act (IPRA) when it denied the paper’s request to inspect a preliminary report issued to the district by the IDEAS company.  The company was under contract with the school district to conduct  a “due-diligence audit,” analyzing departments and finding potential savings.  Attorney Ramón Vigil , representing TMSD,  sent a  letter to the AGO defending the district’s denial of the records request.  He wrote that the initial report contained matters of opinion about district personnel that should be exempt from the IPRA; that the report “was not a record maintained by the board, and therefore, was not a public record as defined by the IPRA;” and that it was a “working document of a private company.” ]

Sua Sponte: School board’s $91 million funding verdict the product of North Carolina’s statutory process for resolving funding disputes between local school boards and county commissioners

On October 17, 2013, Legal Clips summarized a story on wbtv.com  reporting that a state court jury had awarded the Union County Board of Education $91 million in additional funding in its suit against the Union County Board of Commissioners.  The verdict is the product of North Carolina’s unique statutory scheme which permits a local board of education to engage its county commissioners in a procedure for resolving funding disputes.

The law is codified as N.C. Gen. Stat. §115C-431, as revised by Session Law 2013-141.  Under the provisions of the law, if the Board of Education determines that the amount of money appropriated by the County Commissioners for operating expenses (the local current expense fund) or for buildings and other capital needs (the capital outlay fund), or both, is not sufficient to support a system of free public schools, a process of joint engagement begins.  A joint public meeting of the Board of County Commissioners and the Board of Education is held within seven days after the Commissioners adopt their budget ordinance.  A mediator is appointed to preside over the meeting.  The entire school budget must be addressed as the two boards engage in a “good faith” attempt to resolve their funding differences.

If agreement is not reached at the joint meeting, mediation commences.  A working group of the two public bodies is established, consisting of the chair of each board or their designee, the superintendent and the county manager or their designee, the finance officer of each board, and an attorney for each board.  Mediation continues until an impasse is declared or August 1, unless the parties agree to mediate past that date.  If an agreement is not reached, impasse is declared and the Board of Education may file an action in Superior Court with the right to a jury trial.  The case is placed on an expedited docket.

The jury (or judge as trier of fact) is charged with determining the amount of money the school board needs to maintain a system of free public schools “as defined by State law and State Board of Education policy.”  Then the trier of fact determines the amount of money the Board of County Commissioners must supply to make up this sum (allowing for state, federal, and other sources of revenue).  These findings must consider the educational goals and policies of the State and the local Board of Education, the budgetary request of the Board of Education, the financial resources of the County and the local Board of Education, and the fiscal policies of the Board of County Commissioners and the Board of Education.

These findings of fact are considered to be conclusive, and the court is required to order the County Commissioners to appropriate funds to the school system and to levy such taxes on property “as may be necessary” to make up this sum “when added to other revenues available for the purpose.”

The school board in this case was represented by Richard Schwartz, Brian Shaw, and Brandon McPherson from the law firm of Schwartz and Shaw in Raleigh, NC.

North Carolina school board awarded $91 million in funding suit against county commissioners

A state court jury has awarded the Union County Board of Education $91 million in additional funding, reports wbtv.com, in its suit against the Union County Board of Commissioners.  Judge W. Erwin Spainhour awarded the school system $4,973,134 in additional current expense funds and an additional $86,184,005 more than the county commissioners had provided to meet capital outlay needs.  The jury of twelve issued a unanimous verdict after an eight week trial.

Union County commission chairman Jerry Simpson said he is concerned paying the school district more than $91 million may hurt taxpayers.  Taxes could increase because of the verdict.  “It’s certainly an option,” Simpson said. “There’s no way we have that type of money on hand to pay cash.”

School Board chairman Richard Yercheck says the county has the money to write the school district a check immediately.  And there should be no tax increase.  During the trial it was revealed the county has about $239 million sitting in an account.  The county claims that money is to fund other agencies.

At trial, the evidence focused on leaking school roofs, unmet safety and security needs, unmet ADA needs and technology needs for the schools. Superintendent Mary Ellis testified:

I believe that everything requested represents a need, a need for children who don’t have a voice.  The children depend on us to speak for them.  I am not asking for extravagant things.  I am asking for children to not have to attend schools with leaky roofs and for children in wheelchairs to be able to get into buildings.  This is about children.

Source: wbtv.com, 10/11/13, By Staff

[Editor's Note: Council of School Attorneys member Richard Schwartz represented the Union County Board of Education.

In April 2013, Legal Clips summarized an article in the Charlotte Observer reporting that the North Carolina legislature was considering legislation that would end a school board’s ability to sue its county board of commissioners over school funding.] 

North Carolina Supreme Court hears arguments in Hoke County preK funding suit

According to an Associated Press (AP) report in the Rocky Mount Telegram, the North Carolina Supreme Court heard arguments in a suit claiming the state has a duty under North Carolina’s Constitution to provide “at risk” children with pre-kindergarten education services.  The case, Hoke County Board of Education v. State of North Carolina, has continued for twenty years.

The current issue centers on a 2004 ruling from the state supreme court that the state constitutional right to a sound, basic education includes providing children at risk of falling behind their peers with educational services prior to kindergarten.  In response, the governor and the state legislature enacted legislation to provide a pre-kindergarten program, known as More at Four, assuring the court it would be gradually expanded to enroll 40,000 4-year-olds statewide at a cost of about $160 million.

However, in 2011, new Republican majorities in the state legislature limited the program, which they renamed North Carolina Pre-Kindergarten, by restricting the number of slots for at-risk 4-year-olds and cutting funding by 20%.  The new program enrolled about 25,000 children in 2012, down from a peak of about 35,000 in 2010.  A September 2012 survey found that nearly 12,000 children were waiting for Pre-K services.

Superior Court Judge Howard Manning Jr.,  who was named by the supreme court to oversee compliance with the highest court’s earlier school-funding decisions, ruled that state officials could not create barriers that would deny an eligible child admission where a program exists.  North Carolina Attorney General Roy Cooper, representing the General Assembly, appealed that decision.

During arguments, John Maddrey, representing the General Assembly, told the court that state officials believe it’s still a goal to expand the program helping needy 4-year-olds get ready for kindergarten, but its funding and scope aren’t for a judge to decide. “Their goal is to create a statewide system of pre-kindergarten and expand it over time, eventually to serve all people,” said Maddrey.  “But that’s not a binding, enforceable obligation of the state that requires the legislative branch to fund the program to achieve that goal.”

Attorney Melanie Black Dubis, representing the plaintiff school districts, countered that governors and legislative leaders hadn’t simply committed to a plan or program that they could fund more or less based on their judgment.  She pointed out that state officials were forced to respond after the supreme court determined a constitutional violation by failing to prepare needy 4-year-olds for school.

The State Board of Education, for years a defendant in the school funding lawsuits, decided to switch sides, hire their own lawyers, and defend Manning’s decision.  The state school board’s attorney, former Supreme Court justice Jim Exum, said previous legislative decisions agreeing to remedy a constitutional violation can’t be discarded without something else in its place.

Source: Rocky Mount Telegram, 10/15/13, By AP

[Editor's Note: In August 2013, Legal Clips published a Sua Sponte item reporting that NSBA and the North Carolina School Boards Association had filed an amici brief in Hoke County Board of Education v. State of North Carolina arguing that “the trial court properly applied the landmark decisions in Leandro I and Leandro II in enjoining the State, through the General Assembly, from denying disadvantaged children the opportunity to receive the additional assistance necessary for them to have the opportunity for a sound basic education.”  The current suit, also known as Leandro III, is the continuation of a legal dispute that began almost twenty years ago and has been before the North Carolina Supreme Court twice before.]

Indiana school districts and state attorney general file suit against “Obamacare”

Fifteen local school districts and the Indiana Attorney General (AG) have filed suit against the federal government, reports The Journal Gazette, alleging that a new Internal Revenue Service (IRS) regulation improperly imposes the employer mandate requirements of the Affordable Care Act (ACA) on state and local governments and that the ACA does not authorize the IRS to treat the state as a “taxable entity.”  The plaintiffs are seeking an injunction that would prevent the IRS from financially penalizing the state and its political subdivisions.  The suit could cost individual Hoosiers thousands when they buy insurance under the federal marketplace.

“This case is about the fundamental relationship between the state and federal government.  We respect the United States Supreme Court’s ruling last year upholding the individual mandate to buy health insurance; but it did not address the recent IRS regulations extending the reach of the ACA’s employer mandate,” Indiana AG Greg Zoeller said.  “We contend the ACA improperly regulates sovereign states and does not authorize the IRS to do what it is doing in treating the state as a taxable entity.”

The suit argues that state residents aren’t eligible for tax credits or subsidies if they buy health insurance from the federal exchange and that Indiana businesses can’t be penalized.  It also alleges that the ACA specified that subsidies were limited to insurance bought through state-run exchanges. Under the ACA, an employer that is required to, but does not, provide minimum essential health insurance coverage to full-time employees will incur a financial penalty if at least one full-time employee buys insurance from a state exchange and receives a federal subsidy to do so.  This means if no full-time employee receives a federal subsidy, the employer can’t be penalized, the suit contends.

After a number of states, including Indiana, opted out of running their own exchanges, the IRS passed a rule stating that residents who buy coverage on a federal exchange are entitled to the same subsidies as residents who buy from a state-run exchange.  The suit asserts that the financial penalties of the employer mandate cannot be applied to government employers.

Source: The Gazette Journal, 10/9/13, By Niki Kelly

[Editor's Note: The Indiana AG’s press release announcing the suit contained a link to the legal complaint.

In July 2013, Legal Clips published a Sua Sponte item reporting that the National School Boards Association had issued a press release on July 3, 2013, applauding the federal government’s decision to delay the implementation of IRS rules for the ACA until January 2015, based upon the “complexity of the requirements and the need for more time to implement them effectively.” 

West Virginia school board bans teachers from sending students personal texts

The Register-Herald reports that the Raleigh County Board of Education has approved a policy that bans teachers from sending personal texts to students. According to Superintendent Jim Brown, the new policy “prohibits any type of close personal relationship … that may reasonably be perceived as inappropriate” between a student and staff member, including excessive socialization that would cause parents, students or the public to believe an inappropriate relationship exists.

The policy was adopted in the aftermath of two teachers being terminated over the summer for having inappropriate electronic communications with students.  Board member Cynthia Jafary said the policy is designed to give teachers and other employees reasonable guidelines for how to communicate with students.  “We don’t want to shut down communication between staff and students,” she explained.  “But we want it to be within the realm that’s appropriate, and unfortunately, sometimes people just don’t understand under normal circumstances, what’s appropriate.”

The policy does not specifically address the use of social networking sites like Facebook and Twitter or texting.  However, it encourages teachers and staff to use ENGRADE, a school-based system that allows coaches, teachers and principals to send electronic messages to students and parents regarding snow days, homework assignments, classroom events and practices.

Brown said the board lacks the authority to regulate whether a teacher has a Facebook page or restrict who the teacher friends on Facebook.  “But there are best-practice models out there that give an indication as to what’s appropriate and what’s not,” he added.  Brown emphasized the policy doesn’t ban texting, but it does ban any texting communication that isn’t related  to school or extracurricular activities.

During the 30-day comment period, teachers did not react negatively to the policy, Jafary said.

Source: The Register-Herald, 10/9/13, By Jessica Farrish

[Editor's Note: The school board's policy restricts electronic communication as follows:

All electronic communication conducted by an employee with a student must be relative to the educational services provided to the student and shall be delivered by means provided by or otherwise made available or approved by the School System for this purpose. Approved School System electronic communication methods are email, school-sponsored teacher websites, school websites, and other electronic communication that is approved by the Raleigh County School System.  School system employees are prohibited from using electronic communication with a student for a purpose not related to educational services except for communication with an immediate family member.  For the purposes of this policy, immediate family member shall include the employee’s biological, foster or adoptive child, a stepchild and grandchild.

In June 2012, Legal Clips summarized an article in The Hartford Courant reporting that the American Civil Liberties Union of Connecticut (ACLU-CT) had urged the Manchester school board to reject a proposed policy that would regulate professional and personal use of social media sites.  ACLU-CT maintained the policy would restrict speech that is clearly protected by the First Amendment, “imposing a set of regulations that are overly broad and impermissibly vague.” ]

Court allows suit contesting D.C. school closures to proceed on discrimination claims

Smith v. Henderson, No. 13-420 (D.D.C. Oct. 10, 2013)

Abstract: A federal district court in the District of Columbia (DC) has granted in part and denied in part a motion to dismiss or in the alternative grant summary judgment in a suit seeking to block implementation of a plan to close some of DC’s public schools on the grounds that the plan discriminates on the bases of race and income.  It found that the plaintiffs had alleged sufficient faces to state claims under the Equal Protection Clause, Title VI, and the D.C. Human Rights Act.

Facts/Issues:  The District of Columbia Public Schools (DCPS) experienced substantial decreases in enrollment at various neighborhood schools, due to populations shifts and a significant rise in charter school enrollment.  Fifteen schools were particularly affected: by 2013, most of those schools were half full, and in five schools only a quarter of the seats remained occupied.  In response, DCPS implemented a school-reorganization plan (Plan) that involved closing the fifteen schools and reassigning students to higher-performing schools.  The cost savings would be reallocated to other schools throughout the District.

The closed schools are located in predominantly African-American and Hispanic neighborhoods.  In DCPS schools as a whole, 69% of students are black; 16% are Hispanic; 4% are Asian, other, or unknown; and 11% are white. In the schools slated for closure, by contrast, 93.7% of students are black; 5.9% are Hispanic; 0.4% are Asian, other, or unknown; and less than 0.1% (2 out of 3053) are white.  The closing schools also contain a disproportionate number of children with special needs: 27.7% of students in those schools are in special education, versus 14.2% of students in DCPS overall.  The plaintiffs, parents of students in closing schools and Advisory Neighborhood Commissioners (ANC) who say they never received the legally required notice of the school closures, claim that the closures discriminate against poor, minority, and disabled students and were enacted without sufficient community input, thus violating several constitutional, federal, and state provisions.  The plaintiffs also allege that similarly under-enrolled schools in affluent white neighborhoods were kept open and nursed back to health in the 1970s, and that the District’s policy regarding under-enrolled schools has therefore been applied differently based on race and income.

The plaintiffs filed suit alleging breach of contract, fraudulent representation, and violation of the Equal Protection Clause, Title VI, the IDEA, the Americans with Disabilities Act, the Rehabilitation Act, the D.C. Human Rights Act, and the D.C. Sunshine Act.  They sought a preliminary injunction to bar implementation of the plan, which the court denied in May, 2013.  Thereafter, the plaintiffs filed an amended complaint.  DCPS filed a motion to dismiss the amended complaint or in the alternative grant DCPS summary judgment.

Ruling/Rationale: The district court granted DCPS’ motion to dismiss/summary judgment as to many of the claims, but kept alive the Equal Protection Clause, Title VI, and the D.C. Human Rights Act claims.  It also confirmed its previous ruling that the ANC commissioners lacked standing to the bring the suit, for lack of an identified injury.

The court dismissed the plaintiffs’ IDEA claim for failure to exhaust administrative remedies.  The plaintiffs had invoked the futility exception to the exhaustion requirement, but the court disagreed.  The court ruled that the rights available under the IDEA–compliance with the IEP and a least restrictive environment–could be addressed in an administrative appeal and that the remedy the plaintiffs sought–an order that schools remain open for all students–was not available under the IDEA.

The plaintiffs had filed a § 504 claim asserting that the closures violated the code of federal regulations’ requirement that districts provide a “free appropriate public education” to disabled students.  They also asserted a Section 504 claim based on disparate impact.  The court dismissed the FAPE 504 claim based on the administrative exhaustion requirement, which the plaintiffs failed to satisfy, which is just as applicable under 504 as IDEA.  As to the § 504 claim alleging disparate impact, the court, citing Alexander v. Choate, 469 U.S. 287 (1985), said that disparate impact alone does not show discrimination “by reason of” disability.  In addition, the plaintiffs must “allege something more, such as intentional discrimination by the District, denial of some meaningful benefit, or failure to make a reasonable accommodation for students with special needs.”  The court concluded that the plaintiffs had alleged “nothing more than disparate impact” and, therefore, failed to state a claim on which relief can be granted.

The court dismissed the ADA claim because, like a Section 504 disparate impact claim, an ADA claim requires proof of discriminatory intent beyond disparate impact.  The court concluded: “Because Plaintiffs here allege nothing more than disparate impact, their ADA claim also fails.”

The plaintiffs equal protection and Title VI claims, however, were not dismissed, but the court signaled they may face trouble at the summary judgement stage.   The court emphasized that equal protection and Title VI claims require proof of intentional discrimination, not simply disparate impact. Under Supreme Court rulings, intentional discrimination may be proved three ways:

First, a plaintiff may proffer a law or policy that explicitly classifies citizens on the basis of race.  Second, a plaintiff may claim that a facially neutral law or policy has been applied differently on the basis of race.  Finally, a plaintiff may show that a facially neutral law or policy that is applied evenhandedly is, in fact, motivated by discriminatory intent and has a racially discriminatory impact.

The court ruled the first method inapplicable, but found the plaintiffs had alleged sufficient facts to support a claim under the second and third theories of intentional discrimination.  The court pointed to the allegation that the District’s facially neutral school-closure policy has been applied differently on the basis of race because under-utilized white schools were not closed in the 1970s, and to the allegation that the decision to close schools was motivated by discriminatory intent because the closures over the last several decades establish a clear pattern, unexplainable on grounds other than race.

In a word of caution, the court said, “These theories, of course, may well ultimately be too slender a reed on which to hang Plaintiffs’ case.”  It also restated its admonition from its preliminary injunction ruling:  “harmful discrimination may be hard to find where students are being transferred to more integrated, better performing schools.”

The DCPS urged the court to grant it summary judgement at this time, prior to full discovery, but the court deferred, saying that a case generally does not proceed to summary judgment unless all parties have “had a full opportunity to conduct discovery.”  It stated:

Out of an abundance of caution and giving the benefit of all possible inferences to the Plaintiffs, then, the Equal Protection and Title VI claims pass muster under Rule 12(b)(6) and entitle the Plaintiffs to discovery in this case.  That said, however, the Court is not in the business of sanctioning a fishing expedition into decades of DCPS files.  Only targeted discovery will garner approval.

The court summarily dismissed the breach of contract, fraudulent representation, and Sunshine Act claims.  The court also declined DCPS’ motion to dismiss the DCPS officials as defendants because they were being sued in their individual, rather than official, capacities.

Smith v. Henderson, No. 13-420 (D.D.C. Oct. 10, 2013)

[Editor's Note: In May 2013, Legal Clips summarized the district court's decision in Smith v. Henderson denying the plaintiffs' request for a preliminary injunction, concluding that they had failed to demonstrate a likelihood of success on the merits.]

U.S. Supreme Court dismisses age discrimination case after oral argument

A week after hearing arguments in Madigan v. Levin, Docket No. 12-892, the U.S. Supreme Court dismissed the case on the grounds it had “improvidently granted” review, reports Law 360.  The brief dismissal order ended the Court’s consideration of whether state and local government employees can directly sue for age discrimination under the equal protection clause or must follow the out-of-court procedures of the Age Discrimination in Employment Act (ADEA).

Although the Court had granted review in Madigan and held Oral Argument on Oct. 7, 2013, during arguments a number of  justices raised the possibility of dismissing the case as improvidently granted and focused on the procedural posture of the case and the potential jurisdictional issues it presented.  The justices asked several questions about two issues they noted could keep them from reaching the merits of the case.

One issue was raised by an amicus brief filed by a group of law professors, which contended that the Seventh Circuit should not have reached the merits because it was deciding an interlocutory appeal on the question of qualified immunity.  The second issue was raised by Levin himself, who claimed that the question of whether government workers can bypass the ADEA and bring constitutional claims is not properly before the high court because a court found that he was not covered by the ADEA as a political appointee.  The Court’s opinion did not address what made the justices decide that they should not have taken the case.  In light of the opinion, the case will likely end up back before the district court.  Source: Law 360, 10/15/13, By Abigail Rubenstein

[Editor's Note: Scotusblog's recap of arguments in Madigan on October 7. 2013, by Lyle Denniston, revealed that the U.S. Supreme Court might dismiss the case without reaching the merits.  According to the report, several of the justices expressed doubt that the Court should address the merits, i.e., “Whether the Seventh Circuit erred in holding, in an acknowledged departure from the rule in at least four other circuits, that state and local government employees may avoid the Federal Age Discrimination in Employment Act’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and 42 U.S.C. § 1983.”  In June 2013, Legal Clips published a Sua Sponte item announcing that the National School Boards Association, along with the Illinois Association of School Boards (IASB), filed an amicus (friend of the court) brief with the U.S. Supreme Court in Madigan.  The brief made three arguments: (1) the Seventh Circuit’s decision handcuffs school districts and public school officials in meeting the challenges of the nation’s public schools; (2) expansive federal and state laws already protect school employees, obviating the need for expansion of § 1983 to cover claims of age discrimination in the school context; and (3) existing remedies available to employees are less costly, less burdensome, and more aligned with Congressional intent than expensive, time-consuming constitutional litigation.]

U.S. Supreme Court hears arguments on Michigan’s ban on racial preferences

Eight of the nine U.S. Supreme Court’s justices heard arguments in Schuette v. Coalition to Defend Affirmative Action, Docket No. 12-682, reports The Michigan Daily.  Justice Kagan recused herself from discussion and decision in the matter.  At issue is the constitutionality of a Michigan law known as Proposal 2, a 2006 amendment to the Michigan State Constitution that bans race-based preferences in college admission process, public employment, and public accommodations.

The State of Michigan petitioned the Supreme Court to review the U.S. Court of Appeals for the Sixth Circuit’s (MI, OH, KY, TH) 8-7 en banc decision, holding that Proposal 2 violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

The Sixth Circuit concluded that Proposal 2 “violates the Equal Protection Clause by impermissibly restructuring the political process along racial lines.” As a result, it did not reach the plaintiffs’ second argument, that Proposal 2 violates the Equal Protection Clause by impermissibly classifying individuals on the basis of race.  Because of Justice Kagan’s recusal, a 4-4 split would leave the Sixth Circuit’s holding in place.

John Bursch, the state’s solicitor general, asserted that it is up to each state to determine whether they want race-based admissions.  Bursch told the justices that it’s the university’s responsibility to find race-neutral ways to achieve diversity.  He referenced Texas’ top 10% program, which Michigan does not employ, noting it has increased minority performance at socioeconomically disadvantaged high schools in Texas.  “It cannot be unconstitutional for the people to choose not to use (race preferences) anymore, to accept this Court’s invitation in Grutter, to move past the discussion about race and into a race-neutral future,” Bursch said.  Grutter refers to Grutter v. Bollinger, a landmark case in 2003 in which the legality of the affirmative action admissions policies of the University’s Law School were upheld.

Justice Sonia Sotomayor raised the possibility that Proposal 2 intends to segregate schools.  Bursch responded that Proposal 2 is not an attempt to segregate, and argued that it’s a university’s prerogative to achieve diversity with race-neutral practices.  He said institutions can do that by eliminating preference for legacy students or focusing more on applicants’ socioeconomic diversity.

Bursch argued court decisions involving race should have the goal of improving diversity in the future and not trying to change past behaviors. “There’s a difference between favoring diversity as an abstract concept on campus, which Grutter clearly allows, and remedying past discrimination, which was the point of the busing in Seattle,” Bursch said.  “The question is whether the people of Michigan have the choice through the democratic process to accept this Court’s invitation in Grutter to try race-neutral means,” Bursch said.

Mark Rosenbaum, an attorney for the NAACP and American Civil Liberties Union, argued on behalf of the plaintiffs.  He told the Court that he did not believe Seattle was an example of absolving discrimination practices but an effort to improve diversity.  Rosenbaum concluded by noting that race is not entirely off the table under the Equal Protection Clause as shown by the Court’s ruling last term on Fisher v. Texas and reiterating that Proposal 2 racially divides the political process of university admissions.

Shanta Driver, national chair of By Any Means Necessary, also argued on behalf of the plaintiffs, urging the Court to return the Fourteenth Amendment back to its “original purpose to protect minority rights against a white majority.” Justice Antonin Scalia challenged Driver to cite any case of the current Court that confirms the view that the fourteenth amendment only protects minorities. Driver  was unable to cite any case.

Justice Sotomayor articulated her view of the political doctrine:

I thought the line was a very simple one, which is if the normal academic decision-making is in the dean, the faculty, at whatever level, as long as the normal right to control is being exercised then that person could change the decision.  It’s when the process has changed specifically and only for race, as a constitutional amendment here was intended to do, that the political doctrine is violated.

Attorneys involved in the case believe Justice Kennedy will provide the crucial vote.  Kennedy said he had trouble distinguishing between the ruling on the Seattle case and the debate over Proposal 2.

Source: The Michigan Daily, 10/15/13, By Taylor Wizner and K.C. Wassman

[Editor's Note: In September 2013, Legal Clips published a Sua Sponte item announcing that the National School Boards Association had, along with a number of other education groups, filed an amici brief in Schuette.  The brief made three arguments why Proposal 2 violates the Fourteenth Amendment of the U.S. Constitution’s Equal Protection Clause.  First, it contended: “Michigan’s primary and secondary public schools will be prevented from taking research-based, otherwise constitutional measures to meet the needs of all students for a diverse learning environment.” 

Second, the brief charges:

Section 26 directly undermines the ability of public schools to educate all students to be successful participants in a global society. Under this amendment public schools will be severely restricted in creating and maintaining diverse student enrollments that serve the educational needs of all students. …. The amendment will also call into question other necessarily race-conscious actions by public schools that target the academic needs of certain subgroups of students.

Lastly, the brief argues: “This amendment wears a guise of non-discrimination, but in reality threatens to limit the discretion of school leaders that this Court has clearly stated is available to school boards under the Equal Protection Clause.”]

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