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U.S. Supreme Court rules that a teacher’s in-court testimony regarding out-of-court statements made by a minor student about suspected child abuse did not violate Sixth Amendment’s Confrontation Clause

Ohio v. Clark, No. 13–1352 (U.S. Jun. 18, 2015)

Abstract: The U.S. Supreme Court, in a unanimous judgment, has ruled that a teacher’s in court testimony regarding out-of-court statements made by a minor student regarding alleged physical abuse does not violate the Sixth Amendment’s Confrontation Clause. The Court indicated that a statement qualifies as testimonial if the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”

The Court determined that statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than those given to law enforcement officers. It stated that “the test is whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.”

Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Justice Scalia, joined by Justice Ginsburg, filed an opinion concurring in judgment. Justice Thomas filed an opinion concurring in the judgment.

Facts/Issues: L.P., a minor who was three years old, was left by his mother in the care of her boyfriend, Darius Clark. Teachers subsequently discovered red marks on L.P. and a bloodshot eye, both of which appeared to be signs of abuse.  The teachers questioned the L.P. and he identified Clark as his abuser. During a subsequent visit to the kids, which took place at Clark’s mother’s home, a social worker noticed that L.P. and his sister, A.T., both had injuries and took them to a hospital. A physician discovered additional injuries suggesting child abuse.

A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify.

Under Ohio law, children younger than 10 years old are incompetent to testify if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not competent to testify.

Clark moved to exclude testimony about L. P.’s out-of-court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.’s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T.

An Ohio appellate court reversed on the ground that the introduction of L. P.’s out-of-court statements violated the Confrontation Clause. The Ohio Supreme Court affirmed. It held that, “under this court’s Confrontation Clause decisions, L. P.’s statements qualified as testimonial because the primary purpose of the teachers’ questioning was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution.”

Ruling/Rationale: The United States Supreme Court, with all the justices agreeing in the judgment, reversed the Ohio Supreme Court’s decision. Justice Alito issued the Court’s opinion. Justice Scalia, joined by Justice Ginsburg filed an opinion concurring in the judgment. Justice Thomas also filed an opinion concurring in the judgment. At issue was whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing the child’s out-of-court statements to his teachers when the child was not available to be cross-examined.

Justice Alito first pointed out U.S. Supreme Court precedent established that testimonial statements made to law enforcement officers implicate the Confrontation Clause, but the question of whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause had been reserved. Reviewing the Court’s Confrontation Clause jurisprudence, he found that the Confrontation Clause does not bar every statement that satisfies the “primary purpose” test.  Alito concluded that “the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.”

Justice Alito announced the Court would not adopt a categorical rule excluding such statements from the Sixth Amendment’s reach “[b]ecause at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to.” However, he emphasized “such statements are much less likely to be testimonial than statements to law enforcement officers.”  As a result, Alito held: “L. P.’s statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.”

Justice Alito, based on the relevant facts, found there was “no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution.” Instead, he determined that the teachers’ “first objective was to protect L. P.” He also pointed out that L. P.’s age supported the “conclusion” that the statements in question were not testimonial, noting that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” In addition, he bolstered his reasoning by stating that “there is strong evidence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law.”

Lastly, after reiterating that the Court was declining to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, Justice Alito stressed “the fact that L. P. was speaking to his teachers remains highly relevant.” He posited:

Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. See, e.g., Giles, 554 U. S., at 376. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.

Alito rejected Clark’s argument that the state’s mandatory reporting obligations made teachers the functional equivalent of law enforcement when dealing with suspected child abuse. He found, instead, that “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”

Alito also found Clark’s assertion that admitting L. P.’s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify was unavailing. He stated, “The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.” Finally, Alito rejected Clark ‘s argument that because the “jury treated L. P.’s accusation as the functional equivalent of testimony,” it should be barred. He responded that courts “do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony.”

Justice Scalia’s concurrence took the Alito majority to task over what he perceived as it “shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U. S. 36 (2004).”  He contended that the primary purpose test is the sole means of determining if an individual is acting as a witness. Scalia said, “The Confrontation Clause categorically entitles a defendant to be confronted with the witnesses against him; and the primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not.”

According to Scalia, the majority opinion’s assertion “that future defendants, and future Confrontation Clause majorities, must provide ‘evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding,” got “the burden precisely backwards.”

Justice Thomas refused to join with the majority’s opinion because the majority failed to “offer clear guidance on the subject, declaring only that ‘the primary purpose test is a necessary, but not always sufficient, condition’ for a statement to fall within the scope of the Confrontation Clause. ”  He wrote his own concurring opinion, but unlike Scalia Thomas found the primary purpose test “an exercise in fiction . . . disconnected from history for statements made to private persons as it is for statements made to agents of law enforcement.”

Thomas stated that instead of that test  he “would use the same test for statements to private persons that I have employed for statements to agents of law enforcement, assessing whether those statements bear sufficient indicia of solemnity to qualify as testimonial.” He “identified several categories of extrajudicial statements that bear sufficient indicia of solemnity to fall within the original meaning of testimony.” For example, statements “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”

Thomas concluded:

That several of these factors seem inherently inapplicable to statements made to private persons does not mean that the test is unsuitable for analyzing such statements. All it means is that statements made to private persons rarely resemble the historical abuses that the common-law right to confrontation developed to address, and it is those practices that the test is designed to identify.

He  determined that “L. P.’s statements do not bear sufficient indicia of solemnity to qualify as testimonial,” because “[t]hey were neither contained in formalized testimonial materials nor obtained as the result of a formalized dialogue initiated by police.”

Ohio v. Clark, No. 13–1352 (U.S. Jun. 18, 2015)

[Editor’s Note: NSBA, who along with the Ohio School Boards Association filed an amicus brief in support of Ohio, issued a press release applauding the U.S. Supreme Court’s decision. NSBA Executive Director Thomas J. Gentzel said, “The Court properly recognized that school teachers who ask children questions about suspected child abuse are not acting as law enforcement officers. We are pleased with the Court’s decision recognizing that school officials who question students in compliance with reporting requirements are acting to keep children safe.”  According to NSBA General Counsel and Associate Executive Director, Legal Advocacy, Francisco Negrón, “The Court’s decision rightfully takes into account the special context of school personnel who question students out of concern for the child’s welfare as much as out of the mandatory duty to report child abuse.”  Negrón added, “The Court’s decision is a win for NSBA and our co-signatories, but more importantly, a win for the many children protected from further abuse when a teacher asks them what’s wrong,” 

In March 2015, Legal Clips summarized an article in Cleveland.com reporting that the U.S. Supreme Court had heard oral argument in Ohio v. Clark. Cuyahoga County Assistant Prosecutor Matthew Meyer and Assistant U.S. Solicitor General Ilana Eisenstein told the the Justices that the lower court rulings misinterpreted the Constitution by “viewing teachers as police,” as Eisenstein put it. When Justice Ginsberg asked Meyer why statements by a child deemed too unreliable to testify in court should be deemed reliable enough to admit as court evidence if they’re from teachers, Meyer said it would be a mistake to decide that anything such a small child says is unreliable. “It’s a choice between hearsay and nothing when dealing with a three-year-old,” Meyer replied. Meyer argued that teachers who are concerned about their charges’ well-being would ask them about noticeable injuries even if they weren’t required to report the abuse to authorities. “Ohio’s teachers are horrified to learn that the Ohio Supreme Court views them as cops when talking to students,” he told the Justices.

In November 2014, Legal Clips published a Sua Sponte item reporting that The National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA) had joined the National Education Association (NEA) and the American Federation of Teachers (AFT) in an amicus brief in Clark v. Ohio, No. 13-1352, urging the U.S. Supreme Court to  reverse the Ohio Supreme Court’s holding:

(1) that teachers are acting as agents of law enforcement when questioning a minor student regarding suspected child abuse pursuant to Ohio’s mandatory reporting law for purposes of the Sixth Amendment’s Confrontation Clause; and

(2) that out-of-court statements to a teacher in response to the teacher’s concern about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.]




Former high school security officer’s suits claim she was fired in retaliation for telling students to videotape police using excessive force on student

According to Courthouse News Service, Shenetta Toney, formerly a campus supervisor at  Bear Creek High School (BCHS), has filed two suits against Lodi Unified School District in state court and against BCHS’s high school principal and personnel director in federal court claiming that she was the victim of retaliatory firing. Both suits reference an incident that occurred at BCHS in April 2014.

On the date of the incident, there was a fight between some students and nonstudents. Stockton police were called. The suits allege that Toney saw three Stockton police officers brutalize a black student who weighed no more than 100 lbs. The legal complaints state: “They violently smashed her face into the pavement, wrapped their hands around her neck, and yelled at her to be quiet, while another officer had her pinned to the ground with his knee in her back, trying to handcuff her.” The suits say Toney reacted by saying: “Where is the justice in this? This is police brutality. Pull out your cell phones and record this.”

Toney insists she was terminated for engaging in First Amendment protected speech and that LUSD’s personnel director told her so. Her attorney Randy Rumph said, “You don’t get to take adverse reactions against a public employee because they engaged in protected speech.” In addition to her constitutional protections, Rumph said, it’s legal to film police officers in California in many situations.

The San Joaquin District Attorney’s Office criminally charged Toney with interfering with a police officer, but dropped the charges, according to her state court legal complaint.

The state court suit also alleges that LUSD took no action when she complained about racial harassment from fellow  supervisor Don Tirapelle. Among the statements Toney attributed to Tirapelle were: “The blacks sure want to get paid, but they don’t wanna work.” In addition, she claims that when she complained in a staff meeting that Tirapelle was “overly aggressive” with students in the detention program, he responded: “Ninety percent of these students are minorities and will end up in prison anyway. … It is a proven fact.”

Both suits claim Toney was terminated for engaging in protected speech when LUSD administrators reprimanded and fired her for telling students to film police brutality.

Source: Courthouse News Service, 6/11/15, By Nick Cahill

[Editor’s Note: In May 2015, Legal Clips summarized a ruling by a New Jersey federal district court in Czaplinski v. Board of Educ. of the City of Vineland , which denied a former school security guard’s motion for a preliminary injunction prohibiting a school district from terminating her from her position until after the court ruled on the merits of her First Amendment retaliation claim. The district court concluded that the former guard had failed to show the likelihood of success on the merits of her claim. It also held the guard had failed to demonstrate that her interest in free speech outweighed the school district’s interest in avoiding the perception of racial bias and maintaining security in its schools.

Finally the court held that even if the guard had shown a likelihood of success on the merits, her First Amendment retaliation claim would still have failed because she was unable to show that she would suffer irreparable harm in the absence of the preliminary injunction. It indicated that the loss of her job could be compensated for by monetary damages and, thus, did not justify the injunction. It also found that it was not clear that the speech chilled by her termination rose to the level of a constitutional harm. In addition, the court pointed out that it was unlikely that injunctive relief would have addressed the threat of permanent job loss.]



Kentucky superintendents’ group criticizes state credentialing agency’s policy decision to remove online red flags from teachers and administrators who have pending complaints against them

The Kentucky Association of School Superintendents (KASS) is expressing opposition to the Kentucky Education Professional Standards Board’s (KEPSB) decision to remove online flags on files of teachers and administrators who have pending complaints against them, reports the Lexington Herald-Leader. KEPSB is responsible for issuing and renewing certificates for all Kentucky teachers and administrators. The staff works closely with school districts in the hiring process to help ensure there is a properly credentialed educator in every professional position in Kentucky public schools.

In the past, local school district superintendents have been able to access files of flagged teachers/administrators before hiring them. Commenting on the policy change, KASS Executive Director Tom Shelton said, “Superintendents would say if there is anyone flagged for any of these reasons, we should know because we don’t want to hire that person.”

Speaking at KASS’s summer conference, KEPSB Acting Executive Director Jimmy Adams told superintendents who were in attendance at the meeting that KEPSB was acting on the advice of its legal counsel, and the move was tied to a pending lawsuit. Adams said the concern of some on the professional standards board was that teachers don’t get an opportunity to apply for or be considered for positions because of the flags.

KEPSB’s policy change only applies to unresolved complaints. The board’s decision doesn’t involve KEPSB sharing information in cases of an educator’s certificate being revoked or suspended. School districts may still submit an open-records request to determine whether there is a pending case before the professional standards board involving a job candidate, but Adams said the agency would be able only to confirm or deny that a complaint case existed.

Shelton suggests that superintendents change job applications to ask every candidate whether they had a case before the professional standards board. If hired, people who failed to answer the question honestly could face disciplinary action. He also said Kentucky superintendents would continue discussing the issue with KEPSB.

Source: Lexington Herald-Leader, 6/15/15, By Valarie Honeycutt Spears

[Editor’s Note: In March 2012, Legal Clips summarized a decision by the California Supreme Court in C.A. v. William S. Hart Union High Sch. Dist. holding that a student who was the victim of sexual abuse by a high school guidance counselor had stated a valid cause of action against a school district for vicarious liability based on the district’s supervisory and administrative employees’ negligent hiring, supervising, and retention of the guidance counselor. It concluded that there was sufficient caselaw establishing “that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable.” “[I]f a supervisory or administrative employee of the school district is proven to have breached that duty,” explained the court, “by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under [Cal. Gov. Code] section 815.2.” 

In August 2012, Legal Clips summarized a decision by the the Illinois Supreme Court in Doe-3 v. McLean Cnty. Unit Dist. No. 5 holding that two students, who were sexually abused by a teacher, had stated a valid cause of action against the school district that previously employed that teacher based on its duty of care to the students to provide a second district with a factually accurate employment verification form. The Court’s majority affirmed the appellate court’s decision, but on different grounds. The majority concluded that the appellate court had erred in holding that the previous school district had a duty to the students when the first district: (1) failed to warn the second district of the teacher’s conduct; (2) failed to report the teacher’s conduct to authorities; and (3) created and tendered a false letter of recommendation for the teacher, which thereby created the opportunity for the teacher to commit further abuse at the second district.

Instead, the Court’s majority determined that the first district had engaged in conduct that gave rise to a duty when it falsely stated on the second district’s employment verification form that the teacher had worked for the entire 2004-05 school year. The majority pointed out that when the second district requested a completed form from the first district, that request gave rise to a duty for the first district to provide factually accurate information on the form. The majority concluded that the students had stated a colorable claim based on their allegation that the first district had breached its duty, creating a risk of harm to the students by falsely stating on an employment verification form that the teacher had worked for the first district for the entire 2004-05 school year.]

Former bus driver’s lawsuit alleges she was removed from her position in retaliation for a Facebook posting criticizing Connecticut district’s superintendent

Tiffany Walsh, who was employed by First Student Transportation as a school bus driver, has filed suit in federal court against Stonington Public Schools Board of Education and Superintendent of Schools Van Riley, says The Day, charging she was deprived of her First Amendment rights of free speech and free assembly. Tiffany Walsh worked for First Student Transportation, the firm that has the school bus contract with Stonington Public Schools (SPS). She was employed as a bus driver from 2006 until November of 2014,  when she alleges that the school board and Riley forced her removal as a bus driver.

The suit states that Walsh’s problems began in June of 2014 when she posted criticism of Riley and actions he was taking in regards to SPS on her Facebook page and urged other parents and residents to “join with her in standing against” Riley. The suit contends that Riley complained about the posting to Mary Ribeiro, the yard manager for First Student, and that the pair confronted her about the post. The suit states that Walsh was reinstated a week later after the company determined that discipline was not warranted because the posting was not job related.

The suit also alleges that Ribeiro became aware that Walsh was trying to unionize bus drivers. She was placed on leave in November 2014 after the company said other drivers had alleged that she had warned them she would cut the brake lines of buses if the drivers did not approve the union. Police said they investigated but could not substantiate the allegations. First Student took no disciplinary action against Walsh regarding the alleged brake line threat. However, she was not allowed to return to driving a bus for SPS.

Walsh’s suit claims she was removed because the school board and Riley requested that First Student not use her as a driver because of past behavior towards students and staff. The suit notes First Student offered her a job in other area school systems it serves but she declined because of child care issues. The suit is is seeking reinstatement to her job, back pay and benefits, compensatory and punitive damages and attorney’s fees.

Source: The Day, 6/14/15, By Joe Wojtas

[Editor’s Note: In June 2014, Legal Clips summarized a decision by a federal district court in the state of New York in Pekowsky v. Yonker Bd. of Educ. denying a school district‘s and middle school principal’s motions for summary judgment seeking dismissal of a teacher’s First Amendment retaliation  claim. The court concluded that the teacher, who served as union representative for teachers at a middle school, had pleaded facts sufficient to state a cause of action for retaliation that survived the defendants’ motions for summary judgment. It rejected the defendants’ contention that the teacher’s advocacy on behalf of fellow union members was not activity protected by the First Amendment.] 


Ohio district agrees to pay $500,000 to settle bullying suit

The Akron Beacon Journal reports that Green Local Schools (GLS)  has agreed to a $500,000 settlement to end a three-year federal bullying lawsuit. According to GLS Superintendent Jeffrey L. Miller II, GLS and Liberty Mutual Insurance, GLS’ insurance carrier, will each contribute $250,000 in order to end the suit alleging that a student was the target of bullying from elementary school to high school.

Miller said, “The Board of Education condemns bullying without reservation. Our district continues to implement not only a variety of anti-bullying programs, but programming which teaches, encourages and rewards positive and appropriate behavior at each district building.” He continued, “We encourage students who feel harassed or intimidated to follow the board’s policies and procedures in reporting their experiences.”

Responding to the settlement, the plaintiffs’ attorney Ken Meyers said: “It has always been important to them that no other family in the district would have to endure what they went through. Their courage in speaking out and seeking change means a safer future for students, and that’s an outcome the entire community should celebrate.”

Steve Ralls, spokesman for Public Justice, a Washington, D.C.-based legal firm that assisted Meyers, commented that “the policy changes are really important in our view, and I will say the school district did the right thing in agreeing to take the right steps that they have agreed to.”

Source: Akron Beacon Journal, 6/8/15, By George W. Davis

[Editor’s Note: In August 2010, Legal Clips summarized an article in the Pittsburgh Post-Gazette reporting that the Pittsburgh Public Schools (PPS) board had approved the settlement of a suit brought by the parent of a student who the parent claims was subjected to peer bullying and harassment about her weight. The board agreed to pay $55,000, plus the cost of mediation.] 

Ninth Circuit three-judge panel rules that parents of special education student were entitled to reimbursement under IDEA for private school placement because school district had given tacit or implied consent to that placement

Sam K. v. State of Hawaii Dep’t of Educ., Nos. 13-15486/13-16452 (9th Cir. Jun. 5, 2015)

Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel, in a 2-1 split, has ruled that a special education student’s placement in a private school was bilateral because the school district did not offer the proposed individual education plan (IEP), including a public school placement, until after the student had been enrolled in the private school for an additional year. The panel’s majority concluded that the school district had “tacitly” consented to the private school placement by failing to propose an alternative placement. It also held that the parents’ claim for tuition reimbursement was timely filed under the statute of limitations and,therefore, the parents were entitled to tuition reimbursement, under the Individuals with Disabilities Education Act ( IDEA), for the most recent school year.

In addition, the panel unanimously agreed that the federal district court had properly determined the attorneys’ fees under IDEA at the reduced rate, rather than the rate suggested by the parents’ attorney. It found that the lower court had correctly calculated the rate based on IDEA’s prevailing rates in the community.

Facts/Issues:  Sam K. suffers from a number of disorders. In 2003, his parents removed him from public school and enrolled him at Loveland Academy (LA), a private school, where he has remained to the present. The current lawsuit concerns Sam K.’s school placement for 2010-11 school year.

Previous litigation between the parents and the Hawaii Department of Education (DOE) regarding the three years immediately preceding the 2010–11 school year was resolved by a settlement in May 2010 under which (1) DOE agreed to pay for Sam’s tuition at Loveland for school years 2007–08 through 2009–10, (2) current information from Loveland about Sam would be provided to DOE, and (3) the parents would participate in a “IEP Reevaluation meeting” by the end of June 2010.

Sam K.’s parents and DOE met to discuss Sam’s individual education plan (IEP) for the following year several times during the summer and into the fall of 2010. However, Sam K. remained enrolled and attended LA in fall 2010. The meetings extended into January 2011. No different placement was ever agreed upon. DOE did not present a specific public school placement until January 14, 2011, when it produced a signed IEP that provided that Sam would be placed in a public school program at Windward Intensive Learning Center ( ILC).

DOE followed up on that proposal by sending the parents a document entitled Prior Written Notice of Department Action, giving formal notice of the ILC placement, which was dated January 27, 2011. Sam never joined the ILC program, remaining at LA instead.

The parents disputed the effectiveness of the IEP and the finality of the public school placement. The DOE stated in letters dated March 9, 2011, and April 20, 2011, that the IEP issued on January 14, 2011, was the final IEP. The parents filed a request for a due process hearing on October 27, 2011.

Following an extensive due process hearing, the administrative hearing officer (AHO) ruled: (1) DOE “predetermine[d] placement to be appropriate at DOE Proposed Placement [the public school program] in advance and without any significant parental input;” (2) The placement proposed by the DOE was “ill advised, inappropriate, and potentially disastrous to [Sam] and his education;” (3) The parents established that LA was an appropriate placement for purposes of reimbursement; (4) The placement of Sam at LA for the 2010–11 school year was a “unilateral placement” by the parents, without the agreement of the DOE. The AHO also found that the parents’ request for a due process hearing and reimbursement was precluded under state law because it was not filed within the 180 day period required by statute; and (5) The parents did not establish that DOE was responsible for the failure to have the 2010–11 IEP in place by August 6, 2010.

The parents appealed the AHO’s ruling that the placement was unilateral to a federal district court. The district court reversed the hearing officer’s finding as to the statute of limitations, but affirmed it in all other respects. The district court followed its own prior decision in D.C. v. Department of Education, 550 F. Supp. 2d 1238 (D. Haw. 2008), where it held that a subsequent determination by a hearing officer in favor of a student that a private placement was appropriate, while the department of education’s proposed placement was not, constituted an agreement between the department of education and the family rendering the private placement “bilateral” rather than unilateral.

The district court concluded that the “Parents’ decision to continue to enroll Sam in Loveland was effectively a continuation of a bilateral placement rather than a unilateral placement.” The court’s order discussed the Ninth Circuit’s decision in K.D. v. Department of Education, 665 F.3d 1110 (9th Cir. 2011), which held that a settlement agreement did not necessarily constitute an agreement by the department of education that continued into following years, concluding that the K.D. decision was distinguishable based on the facts that the district court identified. Specifically, that Sam had been placed at LA for many years, and that the DOE had agreed in the settlement agreement to pay for the Loveland program for the preceding three years; that the DOE had not offered an IEP for Sam for those preceding years; that the settlement agreement did not provide for a change in placement; and that no IEP had been offered by the DOE by the beginning of the 2010–11 school year.

DOE’s appeal to the Ninth Circuit was limited to the district court’s ruling that the parents were entitled to reimbursement because the LA placement for school year 2010–11 was not “unilateral” and thus that the parents’ request was not untimely. As a result, the district court’s rulings that: (1) DOE breached a procedural requirement of the IDEA by predetermining Sam’s placement and failing to allow for significant parental input in the IEP process, (2) the public school placement proposed by DOE was inappropriate for Sam, and (3) the LA program in which Sam was enrolled by his parents was appropriate, were undisputed.

The parents also appealed the court’s ruling with regard to the dollar amount of the attorney fees the court awarded.

Ruling/Rationale: The Ninth Circuit, in a 2-1 decision, affirmed the district court’s decision that the parents were entitled to reimbursement for the 2010–11 school year. The panel’s majority adopted the definition of “unilateral special education placement” spelled out in Makiko D. v. Hawaii, No. 06-cv-00189, 2007 WL 1153811 (D. Haw. Apr. 17, 2007), which held that “a unilateral special education placement occurs when one party unilaterally (i.e., without consent or agreement of the other party) enrolls the student in a special education program.”

While conceding that the placement in K.D. was unilateral, it concluded that the present case was “different in at least one important respect.” It found:

In K.D. the settlement agreement explicitly contemplated a public school placement for the following year, and the [DOE] proposed such a placement before the next school year began. In the current case, the [DOE] did not present an IEP providing for a public school placement for the 2010–11 school year until January 2011, at least halfway through that year.

The majority, therefore, concluded, “It does not appear to us that the placement at [LA] for the 2010–11 school year was ‘without consent or agreement’ of [DOE], as the term ‘unilateral’ was defined in K.D.” It pointed out that consent may be “tacit” as “K.D.’s definition of ‘unilateral’ further suggests that the manifestation of agreement need not be explicit.”

According to the majority, DOE knew Sam would be reenrolled at LA for 2010-11 “and necessarily consented to that enrollment for that school year because it had not offered another alternative.” It found that while DOE “could have still offered an appropriate public school placement, to maintain the position that Sam’s family should not be entitled to reimbursement for the time following the proposal of a proper public placement,” both the AHO and the district court “concluded that the DOE’s proposed placement was not appropriate and that the Loveland program was, findings that the DOE no longer disputes.”

The majority agreed with the district court that the placement at LA was not ”unilateral”, and as a result, the 180-day limitations period did not apply. It held: “Reimbursement cannot be denied on that basis.”

Turning to the parents claim that the attorneys’ fees should have be calculated at a rate of $375 per hour rather than at the $285 rate used by the district court, the panel unanimously agreed that the “district court did not abuse its discretion in using an hourly rate of $285.” It determined that “[r]easonable attorney’s fees are to be calculated according to ‘the prevailing market rates in the relevant community.’”

The panel stated:

In concluding that the requested hourly rate was excessive and that an hourly rate of $285 was reasonable, the magistrate judge noted the court’s familiarity with the prevailing rates in the community and cited specific fee awards in other cases in the district. The district court accepted that recommendation. Nothing in the record gives us reason to doubt the court’s assessment.

The judge dissenting from the majority holding that Sam’s placement at LA was bilateral, rather than “unilateral,” took issue with the majority’s conclusion that DOE’s silence on the matter of Sam’s placement in the settlement agreement amounted to tacit or implied consent to placement at LA. Instead, it said:

Because the settlement agreement did not place K.D. at Loveland and because the State only agreed to pay tuition for a finite time period, we concluded that the State “never affirmatively agreed to place K.D. at [LA]. In turn, [LA] never became K.D.’s stay put placement and the settlement agreement did not operate to change the placement from unilateral to bilateral.

The dissent concluded, “The flaw in the district court’s opinion that is repeated by the majority is that despite the fact that the settlement agreement did not mention placement as required by all the cases that have addressed this issue, the district court conflated the reimbursement agreement into a bilateral placement agreement.”

Sam K. v. State of Hawaii Dep’t of Educ., Nos. 13-15486/13-16452 (9th Cir. Jun. 5, 2015)

[Editor’s Note: In November 2011, Legal Clips summarized a decision by a South Carolina federal district court in Lexington Cnty. Sch. Dist. One v. Frazier holding that the parent of a student suffering from Asperger’s Disorder and other disabilities was entitled to tuition reimbursement for her unilateral placement of the student in a private residential facility for 2007-2008 school year, but not for 2008 and subsequent years. The court found for the parent on the claim for reimbursement under the Individuals with Disabilities Education Act (IDEA) for 2007-2008 because: (1) the school district’s individual educational plan (IEP) was not reasonably calculated to provide the student with a free appropriate public education (FAPE); and (2) the parent’s private school placement was reasonably calculated to confer some educational benefit on the student. On the other hand, the district court rejected the reimbursement claims for 2008-2009 and 2009-2010, holding that the IEPs proposed by the school district for those years would have provided the student with a FAPE.] 



Florida’s teachers union files appeal in tuition tax credit suit

The Tampa Bay Times reports that The Florida Education Association (FEA), League of Women Voters and other plaintiffs have filed an appeal in their suit challenging the state’s tax credit scholarship program. The suit continues despite the Florida School Boards Association’s (FSBA) decision to withdraw as a plaintiff.

The Leon County Circuit Court dismissed the FEA’s suit on the ground that the scholarship program was not funded by the state’s general operations budget and therefore the plaintiffs had no standing to challenge it. “We find it alarming that parents, teachers and individuals are not being allowed by the courts to challenge the constitutionality of the tax credit vouchers, particularly since the courts ruled a previous voucher scheme unconstitutional,” FEA vice president Joanne McCall said. “If parents and teachers don’t have the right to challenge this lawsuit, who does?”

The attorney for parents supporting the program, Howard Coker, said, “While we are disappointed the plaintiffs appealed the ruling, we will defend the interests of these children all the way to the Florida Supreme Court if we need to.”

Source; Tampa Bay Times, 6/15/15, By Jeffrey S. Solochek

[Editor’s Note: FEA’s notice of appeal filed in the  Leon County Circuit Court lists all of the remaining plaintiffs. In June 2015, Legal Clips summarized an article in the Naples Daily News reporting that FSBA’s board of directors had voted 21-9 to drop out of the lawsuit challenging the constitutionality of Florida’s Tax Credit Scholarship program.] 

Connecticut district settles federal lawsuit with family of student barred from school over fears of Ebola transmission

According to the New Haven Register, the City of Milford and its school system have agreed to pay the Opayemi family $30,000 in order to settle a suit brought by Stephen Opayemi on behalf of his elementary school daughter. The suit alleged that the student  was banned from Meadowside Elementary School (MES) last fall for several weeks because school officials feared she might transmit the Ebola virus.

The suit alleged that school officials barred the student from MES after she returned from a family wedding in Nigeria in October 2014. It noted that Ebola was limited to only three African countries and that Nigeria was not one of those countries. It also noted that the student never exhibited any symptoms of the virus.

The city’s insurance carrier, CIRMA, paid the $30,000 to the family. The settlement also requires the school system to provide the student with any necessary tutoring “to become current with her studies caused by the above-referenced absence from Meadowside Elementary School.” In addition, the settlement indicated that there was “no admission of liability or fault” by either side.

Another provision of the agreement stated, “The parties agree that this agreement relates to a confidential and educational matter, on which no public comment is appropriate. Accordingly, the parties agree that they will not disparage the other. This agreement shall not be disclosed publicly, except as required by the (Connecticut) Freedom of Information Act.”

The New Haven Register filed a complaint with the FOI Commission in an effort to obtain the settlement agreement. It withdrew the complaint this week after the city agreed to release the settlement agreement.

Source: New Haven Register, 6/12/15, By Randall Beach

[Editor’s Note: In November 2014, Legal Clips summarized an article in the New Haven Register reporting that the father of an elementary school student who has been barred from returning to her school after a 25 day trip to Nigeria had filed suit in federal court against the City of Milford and the Milford school system. According to attorney Gary Phelan, who represented the father Stephen Opayemi, the daughter was banned from school for 21 days because she attended a family wedding in Nigeria and there were fears that she might transmit the Ebola virus. The 7-year old girl has not been diagnosed with Ebola and has not exhibited any symptoms of the virus.

In June 2015, Legal Clips summarized an article in The Patriot-News reporting that Susquehanna Twp. School District (STSD) entered into a settlement agreement with former student Gregory Webb and his mother Clarice Webb agreeing to pay $25,000 to end a race discrimination suit. Although the Webbs’ attorney, Nathan C. Pringle Jr., previously said the terms of the settlement were confidential, STSD provided PennLive/The Patriot-News with a copy of the settlement agreement after the news outlet made a request for the document under Pennsylvania’s Right to Know law.] 

U.S. Dep’t of Education warns Oregon it could lose $140 million in federal funds if state enacts measure making it easier for parents to opt-out of standardized testing

The U.S. Department of Education (ED) has warned Oregon that it could lose $140 million a year or more in federal funding if the state legislature votes to enable parents to opt out of standardized testing more easily, says the Seattle Post-Intelligencer. According to ED Assistant Secretary Deborah Delisle’s email to Oregon schools chief Rob Saxton, legislation headed to the Oregon Senate for approval could result in the aforementioned financial sanctions.

Oregon House Bill 2655 (HB 2655) has already received overwhelming approval in the House. The bill’s supporters want schools to be required to inform Oregon parents twice a year of their right to exempt children from state reading and math tests for any reason. Supporters also want schools where a lot of students go untested to be protected from the normal consequence of having the school’s performance rating downgraded a notch or two.

However, ED insists that testing all students promotes civil rights. Schools need to give an honest accounting of how well they prepare students of all backgrounds to meet state academic benchmarks, they argue, and incomplete testing blurs those determinations. According to Oregon Department of Education (ODE) spokeswoman Meg Koch, Saxton believes that the risk of ED withholding funding is real.

Under the federal No Child Behind Act (NCLB), schools are required to test at least 95% of students in every group, including low-income, minority and special education students.  The federal requirement to test at least 95 percent of students in every group resulted primarily from the belief, supported by anecdotes, that some schools discouraged special education students, limited English students and other test-takers that they expected would score low from taking part in state tests.

The law also requires states to report the results. In Oregon, the testing requirement spurred schools to pay more attention to special education students and those learning English as a second language. Most schools had not expected those students to perform at grade level, and most schools worked harder to get them there after they were held accountable for poor results with those students.

In order to receive federal funds, ODE is required to test every student in grades three through eight, plus grade 11, in reading and math every year. The state also had to create and follow a plan to downgrade performance ratings of schools if they didn’t test at least 95 percent of students in every demographic category. State Rep. Lew Frederick has led the effort to make opting students out of tests easier for parents and less onerous for schools.

Oregon this year switched to a new set of tests known as Smarter Balanced, which about 15 states used this school year. Frederick thinks the Smarter Balanced tests are suspect. He wants all parents to be sent more information about them and guaranteed the right to exempt their children. If HB 2655 passes, parents would not have to cite any basis for opting out of tests, ending the requirement that parents cite a religious justification.

Frederick believes ED is just blowing smoke about withholding federal funds from states that permit students to skip tests and fail to penalize schools that don’t test enough students. “Sanctioning a state for making reasonable public school policy would not be good for the long-term credibility of the federal role” in education, he said.

Smarter Balanced has proved to be much more controversial with parents and teachers, in part because the tests are much more demanding. Oregon’s previous tests, known as Oregon Assessment of Knowledge and Skills, or OAKS, were exclusively multiple-choice and computer-scored. Smarter Balanced tests require students to read more demanding passages, synthesize the findings, make arguments and cite evidence to support them. In math, students are expected to show advanced skills at younger ages.

HB 2655, which would take effect in 2016 and run for six years, would require schools to notify parents at the outset of the school year of any standardized testing their children will face. Then 30 days before the tests, parents would be sent another round of information and told how to opt their children out if they wish. Under the bill, the state would generate two performance ratings for schools with high opt-outs: One low rating generated under the current rules, and a second, higher rating calculated without the penalties for testing too few students.

Delisle characterized HB 2655 as “proactively encouraging parents to opt students out of assessments and failing to hold districts and schools accountable,” thus raising the likelihood the state would be penalized. Frederick disputes that, saying parents would get accurate information, not encouragement. “Why is it so important that families be discouraged or prevented from excusing their children from these tests?” he said. “I believe that the parents know what they’re doing.”

According to Delisle’s email to Saxton, all $325 million of Oregon’s yearly federal school funding could be withheld, the state’s $140 million a year in Title I money, the component of federal funding most directly attached to NCLB is in the greatest jeopardy.

In Oregon, record-high numbers of students have been opted out of state testing this year. State officials say 5% of students who were supposed to take the tests sat out. But most of them are non-disabled white students with well-educated parents, a group that tends to perform relatively well on standardized tests.

Source: Seattle Post Intelligencer, 6/9/15, By Betsy Hammond (The Oregonian)

[Editor’s Note: In August 2014, Legal Clips summarized an Associated Press article in The Times-Picayune reporting that Governor Bobby Jindal’s effort to derail Louisiana’s use of the Common Core education standards was halted by a state judge who said that the governor’s actions were harmful to parents, teachers, and students. State court Judge Todd Hernandez temporarily stayed the governor’s decision to suspend contracts the Louisiana Board of Elementary and Secondary Education (BESE) had with vendors to purchase testing material aligned with the multistate standards.

In July 2014, Legal Clips summarized an article in The Oklahoman reporting that within hours of hearing oral arguments in the suit challenging the Oklahoma legislature’s bill repealing the Common Core academic standards,  the state’s highest court ruled that the repeal legislation passed muster under the constitution. The Oklahoma Supreme Court rejected the plaintiffs’ argument that the state legislature had exceeded its authority by giving itself the power to draft new, replacement benchmarks for the state’s students.]

Florida School Boards Association drops out of suit challenging state’s tuition tax-credit law

The Naples Daily News reports that the Florida School Boards Association’s (FSBA) board of directors has voted 21-9 to drop out of the lawsuit challenging the constitutionality of Florida’s Tax Credit Scholarship program. The lawsuit, filed by the Florida Education Association (FEA), FSBA and others, challenged the constitutionality of the program, which funds scholarships for private school students through tax credits for corporations that support the program.

FSBA’s decision came after a Florida circuit court judge dismissed the suit. Andy Griffiths, who represents the Collier County School Board on the FSBA board of directors, said that directors were presented with three options: proceed with an appeal, proceed with the appeal but discontinue financial support towards it, or drop out of the case all together. Griffiths favored the second option.

Griffiths, who also represents Monroe, Glades and Hendry counties, said that the boards he represents had increasingly objected to the use of taxpayer funds to support a suit many of their constituents don’t support. FSBA is funded by membership dues paid by school boards in the state. These dollars come directly from taxpayers.

Collier school board members Erika Donalds and Kelly Litchter have publicly spoken in favor of FSBA ending its participation in the suit. Earlier this year, Donalds became a founding member of the Florida Coalition of School Board Members, an organization meant to parallel the work of the FSBA and that was born out of discontent with FSBA’s support for the voucher suit. Donalds has also proposed that Collier end membership with FSBA because of the organization’s support of this suit.

FEA, the other participant in the suit, has yet to decide whether to appeal the circuit court decision.

Source: Naples Daily News, 6/11/15, By Mel Leonor

[Editor’s Note: In May 2015, Legal Clips summarized an Associated Press article in the Ocala Star Banner reporting that Leon County Circuit Court Judge George Reynolds had dismissed FEA’s lawsuit challenging the state’s tuition tax-credit program on the ground that it violates Florida’s constitution. Judge Reynolds ruled that FEA and the other plaintiffs do not have the legal right to challenge the program. The judge also concluded that the plaintiffs had failed to show how they were being harmed by the program that serves nearly 70,000 students from low-income families.]


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