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Federal appellate court preserves Maryland school board’s 11th amendment immunity against FLSA claims

Gilliland v. Bd. of Educ. of Charles Cnty., No. 12-1628 (4th Cir. 2013)

Abstract: A panel for the Fourth Circuit Court of Appeals (MD, NC, SC, VA, WV), in a per curiam, unpublished decision held that Maryland school boards retain their Eleventh Amendment immunity for suits brought under the Fair Labor Standards Act.

Facts/Issues: The Board of Education of Charles County, Maryland, contracts with an organization to supply bus drivers and bus attendants.  A group of bus drivers alleged that they had not been paid for overtime hours, as required under the Fair Labor Standards Act (“FLSA”).  They brought suit in federal district court against the school district and contractor to recover unpaid wages.

The contractor answered the plaintiff bus drivers’ complaint, but the school district moved to dismiss the FLSA claim for damages under $100,000 under the Eleventh Amendment.  The district court denied the board’s motion after a finding that the state legislature had waived immunity for FLSA’s claim up to $100,000.  The Board appealed the lower court’s decision.

Ruling/Rationale:  A three judge panel of the Fourth Circuit Court of Appeals, in an unpublished opinion, reversed the lower court’s decision.

The Eleventh Amendment to the United States Constitution provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The panel noted that the Eleventh Amendment immunity protects unwilling states from suit in federal court.  This immunity also protects state agents and state instrumentalities, and Maryland school boards fit into that category.

State legislatures, however, may enact statutory waivers of Eleventh Amendment immunity.  The panel examined Section 5-518 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland to see if it constituted a waiver.  That section states:

(b) A county board of education, described under Title 4, Subtitle 1 of the Education Article, may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if selfinsured or a member of a pool described under § 4-7 105(c)(1)(ii) of the Education Article, above $100,000.

(c) A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.

“To constitute a valid Eleventh Amendment immunity waiver, a statute must waive the immunity ‘by the most express language or by such overwhelming implications from the text [of the statute] as will leave no room for any other reasonable construction.’  Edelman v. Jordan, 415 U.S. 651, 673 (1974).”  The panel also stated that it must defer to the state’s highest court’s interpretation of whether a state law waives immunity.

After reviewing several Maryland appellate cases, the panel determined that § 5-518’s applicability turns on the type of claim asserted.  More specifically, the panel concluded that the statute applies only to tort claims, such as personal injury actions, and tort-related claims, such as discrimination actions.  It does not apply to contract claims.  The panel found the FLSA claim to be a contract based claim, not a tort or discrimination claim, and thus the school board’s immunity to it was not waived by the legislature:

Unlike discrimination claims, which the Maryland courts have concluded are in the nature of personal-injury claims, see Board of Education of Worcester County v Beka Industries, Inc. 18 A.3d 890, 907 (Md. 2011), FLSA claims “are contractual in their nature,” Roland Elec. Co. v. Black, 163 F.2d 417, 426 (4th Cir. 1947).  That is so because the FLSA’s overtime provisions “are read into and become a part of every employment contract that is subject to” the FLSA’s terms, and thus “[t]he liability of the employer [in an action under the FLSA for unpaid overtime] is for the wages due under working agreements which the federal statute compels employer and 15 employee to make.”  Id.  In light of the contractual nature of the FLSA claim, we conclude that Maryland courts would not consider it to be an “employment law” claim in this context.  Because we conclude that § 5-518, as the Maryland courts have construed it, does not apply to Plaintiffs’ FLSA claim, we hold that Maryland has not even partially waived the Board Appellants’ Eleventh Amendment immunity against the claim.  Thus, we reverse the district court’s denial of the Board Appellants’ motion to dismiss and remand for entry of judgment in their favor.

Gilliland v. Bd. of Educ. of Charles Cnty., No. 12-1628 (4th Cir. 2013)

[Editor’s Note: In January 2012, Legal Clips reported on Lee-Thomas v. Prince George's County Public Schools,  where a Fourth Circuit Court of Appeals panel, in 1 2-1 split, ruled that the State of Maryland waived its Eleventh Amendment sovereign immunity for damage claims of $100,000 or less.  The Lee-Thomas case involved a suit under the Americans with Disabilities Act,  whereas Gilliland concerned a FLSA claim.  The Gilliland panel did not directly address the Lee-Thomas holding.

In April 2013, Legal Clips summarized a story from Thomson Reuters News & Insight, which reported on a ruling from U.S. Supreme Court related to a class action brought under the FLSA.  In Genesis Healthcare Corp v. Symczyk, the Court ruled that a nurse who sued her employer for unpaid wages could not seek to press her case on behalf of similarly treated but yet-to-be-identified workers once the care facility where she worked offered to settle her claim.]

OCR faults Albany school district for response to race-bullying complaint

The Times Union reports that the U.S. Department of Education Office of Civil Rights (OCR) has cited the Albany school district for inappropriately handling a student’s complaint of race-based bullying.  The eighth-grade honors student, who is biracial, was repeatedly harassed by white classmates at Hackett Middle School in March 2012, according to a federal complaint filed by her parents.  The district is now required by OCR to send an offer of counseling to every black child who attended Hackett Middle School in the 2011-2012 school year and complained about racial harassment.

The complaint alleges that the students who bullied the girl mockingly donned Ku Klux Klan hoods, asked how much her parents had paid to adopt her and compared her skin color to theirs in Spanish class comparison exercises. After a group of students threatened her for being a “snitch,” the girl was so scared she would be beaten that she hid in a bathroom and used a cellphone to call her parents, who rushed to pick her up, according to the complaint.

School officials offered to solve the problem by promoting the girl into ninth grade, three months before the end of the school year.  The girl is now finishing her sophomore year at Albany High School, a year ahead of her peers.

The incidents were handled by Hackett Principal Michael Paolino, who suggested the incident was a “joke gone bad” in March 2012 and that the bullied girl could participate in a “sensitivity circle” to talk about how the incident made her feel, according to the complaint.  The students who participated in the alleged bullying did not receive any discipline, and denied that they wore KKK hoods, even though school officials determined they participated in other harassment.

In a response sent earlier this month, OCR concluded that race-based harassment had occurred and that district officials should have recognized that. The department also found that the district did not appropriately discipline the harassers or provide a viable remedy.

In addition to the offer of counseling, OCR is requiring that racial discrimination training must be provided to all staff members at Hackett.  A student committee will be formed to create harassment awareness and new student orientation will now address discrimination.

The district denied any wrongdoing, but agreed to the new measures to resolve the dispute amicably, according to a response letter signed by Superintendent Marguerite Vanden Wyngaard.  Vanden Wyngaard said the district would provide support for staff members who must deal with these types of incidents.  “As a district, we have a low tolerance for any actions that would cause discrimination or affect the well-being of students or staff,” she said.

Source: Times Union, 5/29/13, By Scott Waldman

[Editor’s Note: In May 2013, Legal Clips summarized a story from the Times-Virginian, which reported a lawsuit filed by the family of a bullied victim against a Virginia school district alleging $8.3 million in damages. The complaint, which was filed in federal district court contained a section entitled the "Bullying Pandemic in America.”]

OCR rejects Indian mascot complaint filed by Michigan Dep’t of Civil Rights

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has dismissed the Michigan Department of Civil Rights’ (MDCR) complaint seeking to end the use of certain American Indian mascots and imagery in Michigan K-12 schools, says mlive. The decision means Michigan schools won’t be forced to change their mascots, nicknames, or imagery.

However, MDCR says it is reviewing the decision and considering its next steps. In a statement released by MDCR, it said:

We are disappointed that US Ed (the US Department of Education) considered our complaint based only on the previously-established ‘hostile environment’ standard, but chose not to consider whether the standard itself needs to be reexamined based on the empirical evidence we provided showing that it fails to prevent harm to students.  MDCR believes the evidence is clear that students are being hurt by the continued used of American Indian mascots and imagery.

According to the OCR letter dismissing the complaint, MDCR failed to provide sufficient information to infer that racial discrimination has occurred or is occurring.  The letter said the state agency “did not provide to OCR any specific examples of race-based incidents nor identify any students or individuals who have suffered specific harm because of the alleged discrimination at any of the named school districts.”

Source: mlive, 6/3/13, By Tim Martin

[Editor's Note: the OCR letter dismissing the MDCR complaint states that MDCR failed to provide OCR with sufficient information "to infer racial discrimination has occurred or is occurring."

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

Federal judge poised to end 49 year-old desegregation case concerning Georgia school district

The Augusta Chronicle reports that U.S. District Court Judge Dudley H. Bowen Jr. has issued an unusual order to all attorneys and parties involved in a 49 year-old desegregation lawsuit against the Richmond County school system. Judge Bowen has ordered both sides to appear in court in order for each side to present reasons to convince the judge that the desegregation case should remain open – else it will be closed.

In his order, the judge said:

It would hardly be a stretch to say that the current level of integration within the facilities, staffing, elected school board, and student population of the Richmond County school system vastly exceeds any likely expectation of the original plaintiffs and their attorneys at the time of the filing.  While I have no statistics to support such speculation, I cannot but observe that this case must be one of the hoariest of its ilk.  No one seems to know quite why it is still pending. If it can be said that the school system’s desegregation objectives cannot be met with the presently composed elected school board and three successive black school superintendents, what is the prospect for the future?

Judge Bowen pointed out that when the lawsuit was filed June 17, 1964, the Richmond County school system was racially segregated, but that is far from the racial makeup of the system today.  He also noted the case has lain dormant for more than three years.  “I inherited this case sometime after I was appointed to the district bench in December of 1979,” he said. “… this case has outlived the three previous district judges who handled it from time to time.”

Bowen quoted the federal judge who coined the phrase “The Alabama Punting Syndrome” in 1979 to describe state government officials who, refusing to comply with court orders, attempt to correct presumed unconstitutional conditions in prisons and mental institutions by forcing the court to stop the perceived violations.  Unless someone convinces him otherwise, Bowen said, it’s time for the government to take back the responsibility for ensuring that students are afforded the constitutional right to an equal education.

Source: The Augusta Chronicle, 6/4/13, By Sandy Hodson

[Editor's Note: In June 2012, Legal Clips summarized an article in the Birmingham News reporting that  the Fort Payne City School District (FPCSD) had reached a settlement in a nearly 50-year-old school desegregation lawsuit with the U.S. Department of Justice. The claims against FPCSD were part of a statewide school desegregation lawsuit, Lee vs. Macon County Board of Education, filed in 1963.  In March 1967, a federal court had ordered Alabama’s then-state superintendent of education to notify a number of school systems, including FPCSD, that they were required to adopt a desegregation plan for all grades commencing with the 1967 school year.]

Disabled student sues New Jersey athletic association under ADA seeking 5th year of eligibility

The Asbury Park Press reports that the parents of a Brick Township High School placekicker with multi-symptom autism and other developmental disabilities have filed a federal lawsuit alleging the New Jersey State Interscholastic Athletics Association (NJIAA) violated their son’s civil rights by denying him a fifth year of eligibility.  The legal complaint claims Anthony Starego is entitled to play football this fall under the federal Americans with Disability Act (ADA), which states in part that reasonable accommodations must be made to include those with disabilities in interscholastic competition.

NJSIAA’s  attorney Steve Goodell responded to news of the suit:

For now, the matter is currently before New Jersey’s Commissioner of Education.  Any action before the Federal court is premature and subsequently inappropriate; the commissioner must first have an opportunity to issue a ruling, based on input from all parties.

The NJSIAA’s six-member eligibility appeals committee, citing association rules that don’t allow student-athletes to play a sport for more than four years or to compete after turning 19, voted unanimously last month to deny Starego a waiver for the 2013 season.  Starego, who completed his fourth year of high school football last fall, turns 19 in June but functions like a 10-year-old academically because of his disabilities, which include ADHD and cognitive impairments.

Starego’s parents appealed the NJSIAA’s decision on April 30 to state Department of Education Commissioner Christopher Cerf, who is expected rule on their petition in coming weeks.  Cerf and the New Jersey Department of Education are listed as defendants on the federal complaint.

The complaint says Starego deserves special treatment through a limited one-year waiver as a reasonable accommodation under the ADA because he is an IEP student with a disability who would not otherwise be eligible to compete this fall.  In addition to the eight-semester and age-restriction rules – partly in place to prevent “redshirting,” the practice of gaining a competitive advantage by sitting out a year while maturing – the NJSIAA said it rejected Starego’s appeal because football is a contact sport, he has the potential to be a difference-maker and as an incumbent starter he could displace a teammate.

Starego’s attorney, Gary S. Mayerson, cites a U.S. District Court for the Eastern District of Pennsylvania decision which overturned a Pennsylvania Interscholastic Athletic Association ruling that banned a 19-year-old developmentally disabled football player from competing because of his age. Unlike Starego, however, that student-athlete had played just three seasons.

Source: Asbury Park Press, 5/30/13, By Gary Tufaro

[Editor's Note: State athletic associations have a number of provisions that affect a student-athlete's eligibility.  In January 2012, Legal Clips summarized a U.S. Court of Appeals for the Sixth Circuit's (MI, OH, KY, TN) three-judge panel decision in Seger v. Kentucky High Sch. Athletic Ass'n holding that a state athletic association’s bylaw limiting the amount of “merit-based” financial aid a private school student may receive and maintain athletic eligibility does not violate students’ First and Fourteenth Amendment rights.  The panel determined that because the rule did not discriminate on the basis of a suspect classification or abridge the exercise of a fundamental right, the bylaw in question was subject only to rational basis review by the court.  Applying that level of review, the panel concluded that the association had expressed a rational basis for the rule, i.e., to deter the improper practice of recruiting students solely for the purpose of athletics.]

New York senior suspended for creating twitter hashtag concerning school board’s budget

Syracuse.com reports that Patrick Brown, a senior at Cicero-North Syracuse High School, was suspended Thursday after he posted on Twitter about the district’s failed 2013-14 school budget.  Brown, who has never been in trouble with the district before, started a hashtag on Twitter Wednesday to discuss things the district could cut in its budget for next year.  The hashtag #s**tCNSshouldcut became very popular with students who started posting throughout the school day.

On Thursday, Brown said he was suspended for using a cell phone in class and inciting a social media riot that disrupted the learning environment. Superintendent Kim Dyce Faucette said she was aware of the situation, but could not comment on disciplinary actions against a student.  “We have a student code of conduct and there are clear expectations for all students in our district,” Dyce Faucette said.  “It’s our expectations that our students will abide by our policy and procedures, and if they don’t there are clear consequences.”

The district’s $144,716,279 budget proposal failed to obtain 60 percent voter approval Tuesday.  The 54 percent approval received was not enough to pass the budget because the district proposed a tax levy increase of 5.33 percent, which was above its calculated tax cap and required a super-majority.

Brown said students were talking about the failed budget and the rumors of athletics and extracurricular activities being cut.  He originally started the Twitter hashtag as a joke, but did express his opinion that the executive principal’s position should be cut.  On Thursday morning, Brown was suspended for three days.  “I was called down to the office and told I was being suspended for harassment of teachers, which no harassment was ever committed,” Brown said.  “I proved them wrong and instead they suspended me for cellphone use in class and disrupting the education process because the trend I started created a social media riot.”  Brown said he did use his cell phone during class, which violates the student code of conduct, but he said his teacher never acknowledged his cell phone use.  “It makes me uncomfortable that I can get in trouble for expressing my opinion,” Brown said.

Brown is active in class activities, plays on the lacrosse team and volunteers within the district.  He said he’s never received a detention or any other disciplinary action at school.  “The worst part is that I disappointed my parents by being suspended,” he said.  After students were told of Brown’s suspension a new hashtag was created on Twitter — #FreePatBrown.  This hashtag was used by students from several school districts and used to discuss freedom of speech.  “It’s wrong that I can’t express my opinion on Twitter without being punished,” Brown said. “They didn’t like our opinions, but that doesn’t mean we can’t express them.”

Source: Syracuse.com, May 24, 2013, Sarah Moses

[Editor’s Note:  In December of 2012, Legal Clips summarized an article from the Student Press Law Center describing the suspension of 10 students for their twitter postings in an Illinois school.  There, the students were suspended for tweeting a sexual comment about one of the teachers, and students who protested the decision were threaetned with suspension.

In September of 2012, Legal Clips reported that a federal district court allowed a student to pursue a free speech claim when she was disciplined for off-campus online postings.  The court ruled that posts on Facebook were not true threats, and could not have been calculated to cause a substantial disruption to the learning environment.]

Teachers’ union files third lawsuit to halt school closings in Chicago

The Chicago Sun-Times reports that a week after the Chicago Board of Education voted to shut down almost 50 public schools, the Chicago Teachers Union (“CTU”) has requested an injunction to stop the Board from closing ten of the listed schools.  The CTU’s lawsuit argues that Chicago Public Schools (CPS) did not follow proper procedure in the 10 closures.

The lawsuit contends that CPS ignored the recommendations of independent hearing officers who opposed the closings on the grounds that the district did not follow state law or its own guidelines for shutting down schools.  Under state law, the district should have abided by those recommendations, argued CTU attorney Robert Bloch.  “The law bars them from closing a school where the hearing officer goes through the process to issue a ruling and determines the school closing plan does not comply with the district’s own guidelines,” Bloch said.  “The board is not permitted to close that school then in that school year.”

District officials have contended the hearing officers’ recommendations for each closing were non-binding.  On Wednesday, CPS issued a statement that accused the CTU of being “committed to a status quo that is failing too many children trapped in underutilized, under-resourced schools.”  “Now is the time for every adult from every community to come together and support our children to ensure they have a safe and smooth transition to their new, higher-performing welcoming schools with the resources needed to succeed and thrive in the classroom,” the statement read.

CTU has also backed two federal lawsuits filed on behalf of parents alleging the school closings violate students’ civil rights and the Americans with Disabilities Act.  CPS has filed a motions to dismiss those suits, and hearings have been set for mid-July.

Source: Chicago Tribune, 5/29/13, By Noreen S. Ahmed-Ullah

[Editor’s Note: In May 2013, Legal Clips summarized an article from the Chicago Tribune reporting that the CTU had filed two lawsuits in federal court to prevent the Board of Education from closing 53 schools.  The first suit seeks a temporary injunction for at least one year to rectify alleged violations of Title II of the Americans with Disabilities Act.  The other suit seeks a permanent injunction alleging that the school closings disproportionately affect African-American school children and students with special needs.]

Michigan student claims school district violated the FOIA and the Open Meetings Act by not disclosing the names of expelled students

The Battle Creek Inquirer reports that a Hastings Area School System senior, Zach Olson, filed a lawsuit claiming that the board of education is required to list the names of expelled students in its minutes under the Freedom of Information Act (FOIA) and the Open Meetings Act.  Outside Legal Counsel, representing Olson, released a statement that he filed a FOIA request in April, seeking the names of all students expelled since 2009.  The district denied the request, citing the Family Educational Rights and Privacy Act (FERPA).

In a statement, attorney Phillip Ellison, of Outside Legal Counsel, said: “While undoubtedly FERPA protects an embarrassing grade in Algebra class, it cannot and should not serve as a way to hide those who brought weapons or drugs to school and were expelled.”

Hastings Superintendent Todd Geerlings responded:

Our position is student info is restricted and we do follow to the detail the Open Meetings Act and also FERPA.  We’re restricted in what we can share and we believe that the filings of this student are frivolous and we’ll vigorously defend them.

Source: The Battle Creek Enquirer, May 24, 2013, Staff

[Editor’s Note: In January, 2013, Legal Clips summarized an article from KGET 17, concerning a California school district's refusal to disclose the disciplinary records of an accused school shooter.  The district cited FERPA and California Education Code Section 49076 as preventing the school district from disclosing the records.]

OCR says Michigan school district failed to properly investigate sexual assault allegations; District accepts costly resolution agreement

Mlive.com reports that the U.S. Department of Education, Office of Civil Rights (OCR) has cited the Forest Hills school district in Grand Rapids, Mich. for failing to follow up on two separate sexual harassment and assault claims lodged against a student athlete.  The Superintendent of School, Daniel Behm, described the OCR report as giving an incomplete picture of what occurred. “The only thing I would say about the report is, the Office of Civil Rights never interviewed our Title IX coordinator and they never interviewed me.  We certainly played a role in making decisions about the whole matter – we played a significant role.”  Nonetheless, the OCR investigation has lead to a resolution agreement imposing numerous requirements on the district.

OCR found Forest Hills failed to investigate most of the claims by one of the students and her parents, who said the girl was repeatedly harassed in school as retaliation after reporting in 2010 that she had been sexually assaulted in a soundproof school band room by a student athlete.  The alleged assault was reported to a teacher the next day, and the attacker was later convicted as a juvenile of misdemeanor assault and battery.  The OCR report describes how the 15-year-old girl was shoved in school hallways, bullied online and taunted at school sporting events.  She dropped out of her after-school sports and eventually left the school, her attorneys said.

The OCR investigation determined that Forest Hills’ procedures for responding to sex discrimination were not effective, and did not comply with Title IX, which is supposed to prevent students from discrimination based on their gender.  The OCR report takes the district to task for its shoddy investigation of both cases: “The district did not investigate or respond to most of the subsequent complaints made by the parents regarding their allegations of ongoing harassment and retaliation against (the 15-year-old girl),” states the report.  “Moreover … within two weeks of the initial complaint of sexual harassment, a second incident involving the same alleged harasser was reported by another female student, but the district did not consider this information in determining whether or not a hostile environment existed in the school and did not take steps to investigate the incident.”

The incident began when the 15-year-old sophomore alleged she’d been sexually assaulted in a soundproof school band room by a student athlete.  A few weeks later, another female student reported that the same athlete forcibly groped her inside a car in the school parking lot.  She eventually dropped her complaint.

How the district responded – or failed to respond – to the assault allegations was a key point for OCR investigators.  A police investigation did not erase the district’s responsibility to deal with the allegation, OCR determined.  “… Contacting law enforcement authorities does not relieve a district of its individual obligation to investigate and address acts of sexual harassment occurring at school or during school-sponsored activities,” the report states.  “… Certain remedies, such as separating the student reporting the harassment from the alleged perpetrator in classes, at lunch, etc., can only be implemented by the school and are the school’s responsibility.”

Forest Hills students who knew about the allegation soon began to take sides, subjecting the sophomore to an “ongoing hostile environment,” OCR investigators wrote in their report.  This “unaddressed climate” at the school may have played a part in the second alleged victim not proceeding with the complaint, the report said.

The OCR investigators looked also at interim measures the school took after the sophomore’s allegation was made.  They noted the suspect was kept in the same class with the first accuser for more than two weeks before removing him.  School officials did not take steps to make sure the girl could attend after school activities, including study sessions, without being confronted by the alleged attacker.  “Effective steps to address this issue could have included meeting with (the girl) and her parents to proactively identify her after school needs and then implementing a plan to provide her with safe access to those activities.  Rather, the district advised (her) mother to tell (her) that when she wanted to stay after school she should talk to a teacher or administrator and they would see what they could do to make her feel safe,” the report said.

The report shows the sophomore’s parents contacted school staff 15 times between November 2010 and June 2011, complaining that their daughter was being harassed or stalked by her alleged attacker or other students, and asking that the student athlete be disciplined or expelled.  The athlete was suspended from the Forest Hills Central basketball team in December 2010 after the girl’s parents asked why he was still being allowed to play, now that he was facing criminal charges in the incident, according to the documents. The suspect, tried as a juvenile, was made a ward of Kent County Family Court after he admitted to assault and battery.  His charge was reduced from two initial charges of fourth-degree criminal-sexual conduct.   He was ordered to attend counseling and write a letter of apology to the girl.

The school district has entered into a detailed resolution agreement with OCR concerning the matters, obligating Forest Hills to take numerous steps.

Under the resolution agreement with OCR, Forest Hills agrees to:

  1. Reimburse the girl who filed charges for her counseling;
  2. Pay her transportation costs after she left for another school;
  3. Review her academic record to determine if she needs compensatory education or other measures;
  4. Take steps to ensure the school takes immediate and effective action to eliminate harassment of the victim;
  5. Undergo district-wide training;
  6. Revive grievance procedures;
  7. Create a student committee and advisory committee to address sexual and harassment and assault; and
  8. Hold a community meeting to share updates to the district’s anti-harassment program.

Behm, Forest Hills’ superintendent, said the school district reached a resolution agreement with OCR before the agency filed its report.  “The district was asked to enter into a resolution agreement before we were even presented with the findings.  The report came after the district entered into the resolution agreement.”  Because there were “key people in the district that they never interviewed, therefore, my sense of the report is, it’s not a complete report,” said Behm.

Source: mlive.com, 5/22/13, By John Agar

[Editor’s Note: In June 2013, Legal Clips summarized an article from the Times Union, which reported that OCR had cited a New York school district for promoting a biracial eighth-grade honors student to ninth grade when she alleged she was being bullied because of her race.  OCR ordered the school to provide racial discrimination training to all school staff members, incorporate anti-discrimination topics into student orientation, and offer counseling to every black child who attended the middle school in the 2011-2012 school year and complained about racial harassment.]

Colorado Supreme Court rules state’s school funding scheme satisfies state constitution

According to The Denver Post, the Colorado Supreme Court, in a 4-2 vote, has found the state’s system of funding public schools to be constitutional.  It overturned the trial court’s decision that the state’s funding system failed to provide a constitutionally mandated “thorough and uniform” system of public education.

The supreme court’s six justice majority concluded that the current finance system is, in fact, “rationally related” to the thorough and uniform standard.  It defined that standard as “of a quality marked by completeness, is comprehensive, and is consistent across the state.”  But it also concluded that such a standard does not demand “absolute equality in the state’s provision of educational services, supplies, or expenditures.”  “While we sympathize with the Plaintiffs and recognize that the public school financing system might not provide an optimal amount of money to the public schools,” said the majority opinion, “the statutory public school financing system itself is constitutional.”

The state attorney general’s office argued that a plaintiff victory could have required the state to raise taxes by 50% or see K-12 education consume 89% of the general fund budget.  Justice Nancy Rice wrote the opinion for the majority, which also included justices Brian Boatright, Allison Eid and Nathan Coats. Chief Justice Michael Bender and Justice Gregory Hobbs dissented. Justice Monica Marquez recused herself from the case because she previously had worked on the state’s defense for the attorney general’s office.

The dissenters in Lobato v. State of Colorado Board of Education zeroed in on a very different definition of the “thorough and uniform” standard, with Bender including qualified teachers, up-to-date textbooks, access to modern technology and good facilities in the equation.  Amid dropping education funding, he noted, a succession of unfunded education standards from the legislature has exacerbated the situation.  He quoted extensively from the trial record as evidence that Colorado has come up well short in a system that’s “fundamentally broken.”

Rice’s majority opinion noted that the decision allows for the legislature to reform state education policy, including its finance system.  The court’s decision comes in the wake of legislation to revamp the state’s school finance formula through Senate Bill 213, spearheaded by Sen. Mike Johnston, D-Denver, in the just-completed session.

The legislation was, in part, an attempt to get out in front of the Lobato decision and provide a remedy that would more adequately and equitably fund schools in the state’s 178 districts.  That measure can take effect only if voters pass a tax increase through a yet-to-be-determined initiative in November. The proposed tax hike would likely be around $1.1 billion, and stakeholders already are jousting over what kind of mechanism should be proposed to raise the money — an increased flat tax or a tiered income tax system.

Source: The Denver Post, 5/28/13, By Kevin Simpson

[Editor's Note: The Majority in Laboto v. State of Colo. Bd. of Educ. held:

 [T]hat the public school financing system complies with the Colorado Constitution.  It is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education.  See Colo. Const. art. IX, § 2.  It also affords local school districts control over locally-raised funds and therefore over “instruction in the public schools.” See Colo. Const. art IX, § 15.  Accordingly, the supreme court reverses the trial court’s finding that the public school financing system is unconstitutional.

The majority also stated:

While we do not dispute that public education in Colorado would benefit from additional funding, the local control built into the public school financing system “provides each district with the opportunity for experimentation [and] innovation” in using limited resources to achieve educational excellence.  The public school financing system is therefore constitutional under the Local Control Clause.

In October 2012, Legal Clips summarized an Associated Press article on denverpost.com reporting that schools and parents suing Colorado over how it funds education are urging the state Supreme Court to uphold a lower court ruling that found the current system to be “irrational and inadequate.”  The plaintiffs said in their filing that the way Colorado funds education prevents districts from teaching an up-to-date curriculum, puts low-income students at a disadvantage, and leaves buildings in some places unsafe.  Their attorneys claim that schools are underfunded by an estimated $4 billion.

In February 2013, Legal Clips reported on a Texas state court ruling that the state’s school financial system is inequitable and unconstitutional.

In January 2013, Legal Clips reported on a Kansas decision from a District Court three-judge panel that the state legislature is failing to meet its K-12 school funding obligations under the state constitution.]

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