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Los Angeles district rejects “parent trigger” law petition to take over elementary school

KPCC reports that Los Angeles Unified School District (LAUSD) officials have rejected a “parent trigger” petition from a group of parents  at 20th Street Elementary School  to turn over control of the school to a charter school operator. LAUSD sent a letter to the parent group stating the school is not subject to the California law that lets parents force changes at a low-performing school where their children attend.

According to parent trigger advocates, the 20th Street Elementary Parents Union submitted more than 350 signatures in February, which is enough to to force the district to turn over 20th Street to a charter operator. However in LAUSD’s response letter, the school district’s attorney counters that the school isn’t eligible for the parent trigger process since 20th Street met its “adequate yearly progress” target under federal school accountability laws.

California’s parent trigger law, which became law in 2010, has been controversial since its inception. While proponents argue that the mechanism gives parents the power to force needed changes in struggling schools, opponents contend that efforts to turn schools over to charter operators are often far from grassroots and are motivated by efforts to weaken teachers unions and traditional school districts.

Gabe Rose, the chief strategy officer at Parent Revolution, an advocacy group that supports parent trigger efforts and that helped organize the school’s parents, said LAUSD was wrong in saying the school isn’t eligible for the parent-initiated transformation under state law. “A lot of these are not matters of opinion, they’re actually provably false,” Rose said. “I think it’s unfortunate that LAUSD chose to go down this road rather than spending their time, energy and money trying to work with families that are trying to make their school better.”

LAUSD attorney David R. Holmquist said the petition was also “defective” because it did not specify what kind of intervention parents were seeking at the school: did they seek to turn it over to an independent charter operator or to an education management organization, a type of school operator that isn’t necessarily a charter?

Parents said LAUSD is not living up to its promises to act quickly to make changes. In a Feb. 1 letter to LAUSD Superintendent Michelle King, the parents cited turnover in the principal’s office and what they said was the district’s failure to deliver on a promise to train teachers. That dissatisfaction led the 20th Street Elementary group to turn in a new petition signed by 58% of the school’s parents.

In a statement, King said district staff “remain committed to working with parents to address all concerns in a timely manner.” Rose said parents have been in contact with attorneys who have prevailed in similar cases. Those attorneys have agreed to represent the parents for free, leading Rose to believe the parents would be “well-positioned” to prevail if they opted to bring the district’s rejection before a judge.

Source: KPCC, 3/14/16, By Kyle Stokes

[Editor’s Note: In September 2013, Legal Clips summarized an article in the Los Angeles Times reporting that LAUSD school board had approved guidelines for navigating the difficult process involved in overhauling schools under California’s parent trigger law. Under that law, enacted in 2010, parents at low-performing schools have the right to force out school staff, close their campus, or reopen as an independent, publicly financed charter. The school board’s approval of these guidelines is the first attempt to address concerns that parents may not always receive accurate or objective information about the status of their schools or the parent trigger process. The guidelines require LAUSD to hold public meetings to provide information about schools targeted by a parent petition campaign, but bar any advocacy by either side.]



Mississippi district facing federal probe of allegations that its student disciplinary practices are racially discriminatory

DeSoto County Schools is the target of a formal investigation by the U.S. Department of Education’s Office for Civil Rights (OCR), reports The Commercial Appeal, after African-American parents and students filed a complaint with OCR alleging discriminatory student disciplinary practices. “For years, African-American students have been disproportionately suspended, pushed out of school and denied valuable time in the classroom due to racially discriminatory policies,” James Mathis, chairman of the local DeSoto County Parents and Students for Justice group, said. “The Department of Education’s decision to investigate DeSoto County Schools affirms the lived experiences of African-American students and their families, who have been unfairly marginalized by DeSoto County’s school-to-prison pipeline.”

A March 10th letter, from OCR’s Dallas regional office, confirms it has evaluated the complaints and will open an investigation, but notes the action “in no way implies that (the civil rights office) has made a determination with regard to its merits.” Local parents, primarily African-American, initiated the complaint nearly a year ago, announcing last April, with backing from Advancement Project attorneys, that they would provide statistics and anecdotal evidence to the Department of Education in hopes of a formal investigation. Since then, education officials have looked into the matter to decide whether to proceed. The process included a local visit in December in which stories of alleged unequal treatment were collected to supplement information provided as part of the complaint.

Jadine Johnson, an attorney with Advancement Project, a civil rights advocacy group, said the process will involve a review of data and interviews of school district officials. She said the most recent data available shows the district has about a 60 percent white enrollment and about 35 percent African-American. The data, according to Johnson, indicates African-American students are 2.5 times more likely to be suspended and that the suspension rates for African-Americans is “much higher” at all but one school.

Johnson said students of color with disabilities are particularly at risk of inequitable treatment. “These disparities do not reflect isolated incidents, but a pattern,” Johnson said. “We believe the opening of our complaint represents the ongoing nature of these problems.”

Such alleged disparities have been dubbed the “school-to-prison” pipeline because they often take students out of class and onto a path that leads to imprisonment. Similar disparities in suspension rates in the Meridian, Mississippi, school system led to a consent decree between the school district and the Department of Justice in 2013 to address the practices.

Source: The Commercial Appeal, 3/15/16, By Ron Maxey

[Editor’s Note: In August 2015, Legal Clips summarized a story from ABC News 11 reporting that Meridian Public School District (MPSD), which two years ago settled a suit brought by the U.S. Department of Justice (DOJ) over MPSD’s disciplinary practices, is now being praised by DOJ for the student disciplinary program the school district put in place after the settlement.

In December 2014, Legal Clips summarized an article in The Gazette reporting that according to an unnamed source at the U.S  Department of Education’s Office for Civil Rights (OCR), OCR’s investigation into a Cedar Rapids school district’s discipline practices was likely to conclude in the spring of 2015 with an agreement by the district to revise its policies and continued monitoring by the agency. OCR was looking into whether Cedar Rapids Community School District (CRCSD) has discriminated against African American students by disciplining them at a rate disproportionate to their percentage of enrollment.]


Suit alleges California district knew of high school wrestling coach’s sexual abuse of students and failed to take action

According to the Los Angeles Times, a suit by a group of former students alleges they were molested by Thomas Joseph Snider, a Torrance High School (THS) wrestling coach, and Torrance Unified School District (TUSD) administrators had been warned the coach was sexually abusing boys but did nothing about it. Snider is currently facing a number of felony and misdemeanor criminal charges related to sexually molesting boys going back to 1990.

The lawsuit claims that TUSD’s superintendent and the THS principal knew that “Snider had engaged in unlawful sexually-related conduct with minors in the past, and/or was continuing to engage in such conduct” before the most recent sexual assault last year. TUSD spokeswoman Tammy Khan said TUSD acted immediately by placing Snider on leave when a high school employee learned in January 2015 of “possible inappropriate conduct by Mr. Snider.” The district also immediately notified police, Khan said.

The suit claims Snider watched students on his wrestling team shower and massaged their buttocks and groins. It also alleges that the coach took off the boys’ clothing to perform “skin checks,” during which he “would grope and fondle” the students’ genitals. Wrestling coaches perform skin checks to make sure the sweat on the wrestling mat hasn’t caused fungal infections, but students don’t need to take off clothes or have covered areas checked, said John Manly, one of the attorneys who filed the lawsuit.

The suit alleges that TUSD has a systemic problem that goes beyond Snider. The legal complaint says the district failed to investigate other teachers and coaches who were accused of abusing children and failed to train teachers and staff on how to prevent the sexual abuse of students on campuses. The lawsuit offered no specifics to support that claim.

Source: Los Angeles Times, 3/10/16, By Sonali Kohli

[Editor’s Note: In February 2014, Legal Clips summarized an article in U.S. News & World Report reporting that a Government Accountability Office (GAO) report says schools need to be more vigilant in preventing and reporting child sexual abuse. The GAO report also calls on federal agencies to better disseminate information to help schools prevent and report sexual abuse, and to better track and analyze incidents of sexual abuse committed by school personnel.]


California federal district court modifies previous ruling ordering school districts state wide to provide advocacy groups with access to student data

Following a torrent of criticism of U.S. District Court Judge Kimberly Mueller’s previous order giving plaintiffs access to data derived from the demographic and personal information of California public school students dating back to 2008, reports The Piedmont Highlander, the judge modified the procedure for the disclosure of confidential information. The plaintiffs in Morgan Hill Concerned Parents Association, et al. v. California Department of Education (CDE), allege that the CDE has failed to monitor and enforce school district adherence in providing a free and appropriate public education to students with special needs.

As part of the discovery phase of the lawsuit, the plaintiffs requested access to data about California students stored on CDE databases dating back to Jan. 1, 2008. The databases include students’ names, social security numbers, demographics, statewide assessment results, behavior and discipline information, Individualized Education Programs (IEPs) and health-related records, according to the Jan. 26 notice of disclosure of student records.

In response to the large number of objections that the court received, Judge  Mueller announced a modification to the discovery protocol on March 1. The plaintiffs will no longer receive the data from the CDE database with the most sensitive information called CALPADS. Instead, they will request searches of the data from the CDE. The CDE will maintain custody of the CALPADS data.

In the March 1st order, Mueller also said that the court has not and cannot review the objections individually. In other words, sending an objection form does not constitute opting out of the data disclosure.

According to Vice President of the California Concerned Parents Christine English, much of the data that will be transferred to the plaintiffs is already given out in the form of directory information. Under California law, directory information, which includes the students’ names, parents’ names, birthdates, grades and addresses, is already provided by school districts to not-for-profit organizations, unless parents choose to opt out, English said. “Most parents do not realize that this information is already being given out,” English said. “When you go back to us and our group, we’re really not scary anymore.”

Another issue raised by this case is the law regarding privacy of student information. In the March 1st court order, Mueller pointed out the “imperfect fit” between the digital age and FERPA legislation, which was written in the 1970s. The March 1st order emphasized that the court has not ordered the release of the data. Instead, the court has approved procedures to manage the provision of data to the party requesting it.

CDE information officer Peter Tira said, “No data has been turned over.” He added, “There’s no date for it to be turned over. The court is still setting up the ground rules.”

Source: The Piedmont Highlander, 3/12/16, By Emma Seevak

[Editor’s Note: The latest court order makes it clear that no student data has been released and that the court’s ruling is limited to restricting any future release to Option 2 of the court’s existing E-discovery Protocol: 

As of the date of this order, no data have been transferred to plaintiffs under the Protocol. Contrary to some public reports filed with the court, this court has not ordered the release of any data. Rather, the court has approved orders and procedures to manage the provision of data to a party requesting it in discovery, if that party has a lawful right to the data.

In February 2016, Legal Clips summarized an article in  the Los Angeles Times reporting that School officials from a number of school districts in California were alarmed by a recent order from a federal district court judge allowing plaintiffs in a lawsuit access to data derived from the demographic and personal information of California public school students dating back to 2008.]

Tennessee legislature considering legislation that would restrict transgender students’ use of restroom facilities at school

Following the governor of South Dakota’s veto of his state’s legislation restricting transgender students’ use of restroom facilities, The Tennessean reports that the Tennessee legislature is considering similar legislation. The bill, sponsored by state Rep. Susan Lynn and state Sen. Mike Bell, would “require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.”

Lynn, who called South Dakota Gov. Dennis Daugaard’s veto a “mistake,” said the legislation is necessary in order to avoid a lawsuit. Every school district in Tennessee has to currently come up with their own policy, she said, calling it a “salt and pepper, patchwork” approach.

Lynn argues that by allowing each school district to set their own policy, a parent might decide to take legal action which could force a district to explain how they came up with their own policy. To avoid that, she said the state should implement a law requiring students to use bathrooms based on their gender at birth, which she said will offer protection to individual school districts.

According to Lynn, the state would be on solid ground, in the event of a lawsuit, if it were to enact her bill. “We feel past court decisions have upheld the right to privacy for students regarding this issue,” she explained. The privacy argument is one that advocates are expected to use when the legislation is taken up in the House Education Administration and Planning Subcommittee this week.

Opponents of the measure have been weighing in on the issue as well, calling Lynn’s bill “appalling” and “outrageous.” Last week, the American Civil Liberties Union of Tennessee (ACLU-TN) sent a letter to Gov. Bill Haslam urging him to take a stand against the bill.  The letter states: “This legislation calls for one group of students to be treated differently from others.  Not only is that unlawful discrimination, it can have a devastating impact on young people who are already under tremendous stress and at greater risk of bullying,”

ACLU-TN’s executive director Hedy Weinberg warned enacting such a law would put the state in jeopardy of losing hundreds of millions of dollars in federal funds because passing such legislation would violate the 14th Amendment’s Equal Protection Clause, as well as Title IX, a federal law that prohibits discrimination on the basis of sex. Although the bill’s fiscal note found no significant financial impact, the possibility of the state losing federal funds has at least concerned the Tennessee Department of Education (TDE). “There is a fiscal flag on this legislation because of concerns around losing Title IX funds,” said Ashley Ball, the department’s communications director. “This is an emerging area of the law that courts across the country are currently considering, and decisions on sensitive issues such as these are best made at the local level based on the unique needs of students, families, schools, and districts while working closely with local board counsel.”

Ball said that if school districts violate Title IX, they could lose federal funds. Lynn dismissed TDE’s concerns, saying, “We would not lose Title IX funds. I’m confident of that.”

Also opposing the bill are the Human Rights Campaign and the Tennessee Equality Project, as well as 75 ministers and rabbis who have written a letter opposing the measure. In addition to South Dakota, which would have become the first state in the nation to have such a law had it not been for Gov. Daugaard’s action, as many as 10 other states, including Tennessee, Indiana and Kentucky, have begun fighting over restroom laws this year.

Source: The Tennessean, 3/7/16, By Joel Ebert

[Editor’s Note: In March 2016, Legal Clips summarized an article from CNN reporting that South Dakota Gov. Dennis Daugaard vetoed a bill that would have required transgender students in the state’s public schools to use bathrooms and locker rooms that matched their sex at birth. The proposed legislation’s language restricted access to school restrooms and locker rooms to students of the same biological sex.]

Federal district court rules that California district’s policy of opening board meetings with an official prayer violates the First Amendment’s Establishment Clause

Freedom From Religion Foundation v. Chino Valley Unified Sch. Dist. Bd. of Educ., No. 14-2336 (C.D.Cal. Feb. 18, 2016)

Abstract: A federal district court in California has ruled that a school board’s policy of opening meetings with a prayer violates the First Amendment’s Establishment Clause, as does the board’s practice of praying, conducting Bible readings and conveying proselytizing religious messages during meetings. It rejected the school board’s argument that based on the U.S. Supreme Court decision in Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811 (2014), school boards fall within the legislative exception enunciated in Marsh v. Chambers, 463 U.S. 783 (1983), which allows legislative bodies, including school boards, to open their sessions with a prayer.

Instead, the court applied the three-part test spelled out in the Supreme Court’s decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). It concluded that the policy lacked a secular purpose and conveyed a message of endorsement of Christianity.

Facts/Issues: The Freedom From Religion Foundation (FFRF) filed suit on behalf of two parents against Chino Valley School District (CVSD) and a number of school officials, seeking to enjoin the school board’s policy and practice of opening board meetings with a prayer and praying, conducting Bible readings and conveying proselytizing religious messages during meetings. FFRF sought prospective injunctive relief, nominal damages for past violations and attorneys’ fees. FFRF’s suit claimed the board’s prayer policy and practice of Bible readings and proselytizing messages during meetings violate the First Amendment’s Establishment Clause. Both parties filed motions for summary judgment.

Ruling/Rationale: The district court granted in part FFRF’s motion for summary judgment and denied in part CVSD’s motion for summary judgement. Before addressing the merits of FFRF’s claims on behalf of the parents, it took up the issue of whether the parents had standing to sue, i.e. suffered an injury in fact. The court concluded that because the parents attended board meetings where prayers are routinely said, they had suffered an injury in fact and, thus, had standing.

The district court also rejected the defendants’ assertion that the board members in their individual representative capacities qualified for legislative immunity pursuant to the U.S. Constitution’s Speech and Debate Clause and the “free speech rights of lawmakers.” It concluded that the board members acts were not of a legislative nature. The court found that the board members could not argue that “offering religious prayers, reading from the Bible and proselytizing constitute an integral part of the deliberative and communicative processes by which legislators participate . . . in proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters within the legislative sphere.”

As to the defendants’ assertion of Eleventh Amendment immunity, the district court held:

[T]he Eleventh Amendment bars all state and federal claims against the Board of Education, and all state claims against the individual Board members. The Eleventh Amendment also bars Plaintiffs’ claim for nominal damages for past constitutional violations. However, the Eleventh Amendment does not bar Plaintiffs’ § 1983 claims for injunctive and declaratory relief against the individual Board members sued in their official capacities, or Plaintiffs’ claim for costs and reasonable attorney’s fees pursuant to 42 U.S.C. § 1988.

The court then turned to the merits of the Establishment Clause claim. It stated that the issue was whether the court should apply the Lemon test to determine the constitutionality of the board’s actions, as suggested by FFRF, or whether the school board prayer qualifies for the legislative prayer exception enunciated in Marsh and recently applied in Town of Greece. It pointed out that the two federal appellate circuits, the Third, in Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011) and Sixth, in Coles ex rel. Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999), that addressed the issue of school board prayer both held that “school board prayer does not qualify for the legislative exception.” However, the defendants contended that those two decisions were no longer controlling in light of Town of Greece.

After reviewing school prayer jurisprudence, the district court pointed out that the cases affirmed the principle that the “Constitution prohibits the state from forcing one of its citizens to ‘forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.’” Nevertheless, the defendants argued that the present case was not a school prayer case, “and that the facts of the case are more like the recitation of prayers at the opening of a state legislature” that was at issue in Marsh.

The court found that the “indicia of coercion and involuntariness” present in the Third Circuit’s decision in Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011), was also present in the case before it. It emphasized that the Third and Sixth Circuits recognized, school board meetings “bear several markings of involuntariness and the implied coercion” that the Supreme Court acknowledged in its school prayer jurisprudence.

The district court stated:

In this formal, manifestly school sponsored setting, the power imbalance between the State and the students is even more pronounced than at football games or graduations. The student who has come before the Board is unlikely to feel free to dissent from or walk out on the body that governs, disciplines, and honors her.

It concluded that the “differences between Indian River and the present case are not sufficiently significant to remove this case from the public school and place it in a state legislature.”

In fact, the district court found Town of Greece “supports the notion that the legislative exception is limited to houses of governance in the world of mature adults.” According to the district court:

Town of Greece was not a sea change across all lines of First Amendment jurisprudence; rather, it extended Marsh from the statehouse to town halls, and held that legislative prayers delivered therein need not be non-sectarian. Town of Greece left the school prayer cases, upon which Indian River, Coles, and this Court rely, undisturbed.

Applying the Lemon test, the court questioned “the sincerity of the asserted secular purpose,” and pointed out that “solemnization of the meetings could have been achieved without resort to religious prayer.”  As a result it held that the board’s policy failed to satisfy the purpose prong. It likewise concluded that the Board’s policy and practice of prayer during its meetings ultimately conveys the message of government endorsement of Christianity in the public school system and, therefore, violated the First Amendment’s Establishment Clause.

Freedom From Religion Foundation v. Chino Valley Unified Sch. Dist. Bd. of Educ., No. 14-2336 (C.D.Cal. Feb. 18, 2016)

[Editor’s Note: In May 2014, Legal Clips summarized an article in The New York Times reporting that a five justice majority, led by Justice Kennedy, had ruled that a New York State town’s practice of beginning public town board meetings with a prayer from a “chaplain of the month” passes constitutional muster.  Kennedy wrote, “[C]eremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define.”

In August 2011, Legal Clips summarized the Third Circuit’s decision in Indian River holding that a Delaware school board’s policy of opening meetings with a prayer violates the First Amendment’s Establishment Clause. The panel concluded that the constitutional exception established in Marsh v. Chambers, 463 U.S. 783 (1983), for legislative bodies does not apply to school boards. Instead, it determined that “the traditional Establishment Clause principles governing prayer in public schools” as spelled out in Lee v. Weisman, 505 U.S. 577 (1992), governed.]



Ninth Circuit panel rules that special ed student had valid claim under § 504 and Title II of the ADA for damages based on failure to provide meaningful access to education and reasonable accommodation

A.G. v. Paradise Valley Unified Sch. Dist., Nos. 13/16239/13-16707 (9th Cir. Mar. 3, 2016)

Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel has ruled that a disabled student stated valid claims for damages under both § 504 of the Rehabilitation Act (§ 504) and Title II of the Americans with Disabilities Act (ADA). The panel concluded that the federal district court  erred in granting a school district’s motion for summary judgment on the student’s claims for damages under § 504 and Title II of the ADA. It found that the student had alleged sufficient facts to raise a question of disputed material fact regarding whether the school district had denied the student meaningful access to educational benefits and reasonable accommodation. The panel also determined that the student had shown sufficient facts to raise the question of whether the school district had notice of the student’s need for an accommodation and failed to act. As a result, there was a material dispute of fact regarding the issue of deliberate indifference needed to recover damages based on the 504 and Title II of the ADA claims.

This summary is limited to the discussion of the § 504 and Title II of the ADA claims.

Facts/Issues:  A.G., a special education student, attended Vista Verde Middle School (VVMS) in the Uniquely Gifted Program for students with high IQs and one or more learning or behavioral disabilities. During that time, A.G. periodically demonstrated aggressive, disruptive, and noncompliant behavior. Her Individualized Education Plan (IEP) set forth various educational services that would be provided to A.G.

However in December of 2009, A.G.’s behavior began to deteriorate. By January of 2010, she refused to go to class, destroyed school property, threatened to harm herself, wrote graffiti on a bathroom wall, and was uncooperative with a school resource officer, eventually physically striking that officer. A.G. was suspended from Vista Verde following the last incident.

In February 2010, A.G.’s IEP Team met and adopted an Addendum to A.G.’s IEP. Pursuant to the Addendum, A.G. was to be transferred to the Roadrunner School (RS), a school primarily designed for children with emotional disturbances, where she was to participate in an assortment of counseling, behavior management, and special education programs. A.G.’s parents agreed to the addendum. A.G.’s parents were informed that A.G. would not be restrained at RS unless she became a danger to herself or others.

A.G. demonstrated behavioral issues on her second day at RS. She resisted entering the school that day and had to be physically escorted onto the premises by staff members and led to the “Intervention Room.” During that incident, A.G. kicked a paraprofessional in the face. Officer Lori Welsh, a city police officer who worked as off-duty security at the school, was summoned and she arrested A.G. for aggravated assault and criminal damage. Officer Welsh placed A.G. in handcuffs and detained her until her mother arrived to pick her up.

On March 23, 2010, Officer Welsh was again summoned by one of A.G.’s teachers to escort A.G. to the Intervention Room. Officer Welsh attempted to handcuff A.G. for allegedly poking her in the eye, but A.G. resisted and eventually scratched Officer Welsh in the face and neck. Officer Welsh placed A.G. in an arm bar, applied handcuffs, and called for backup. A.G. was eventually arrested for aggravated assault, transported to the police precinct for booking, and placed in a juvenile detention room where she kicked the table and chair.

After being transported to the Juvenile Court Center, A.G. was released to her parents. The charges stemming from both incidents were later dismissed, and A.G. returned to RS. She was eventually moved to the Howard S. Gray School, a private psychiatric school, at the expense of Paradise Valley Unified School District (PVUSD).

A.G. and her parents filed an administrative due process complaint with the Arizona Department of Education alleging that A.G. was denied a FAPE by PVUSD and its named representatives and employees. The administrative complaint sought remedies available under the IDEA. Plaintiffs also filed the present action in Arizona state court against PVUSD, the City of Phoenix, and Officer Welsh. Defendants later removed the action to federal district court.

In their amended complaint, plaintiffs alleged a denial of FAPE under the procedural provisions of the Individuals with Disabilities Education Act (IDEA), under § 504 and Title II of the ADA, as well as various state common law tort claims against the school district defendants.

The plaintiffs’ principal discrimination-based claims relate to the school district’s alleged failure to provide adequate accommodations, including a Functional Behavior Assessment (FBA), a Behavior Intervention Plan (BIP), and a full-time aide, and PVUSD’s decision to change A.G.’s placement from VVMS to RS. Plaintiffs alleged that having further accommodations would have allowed A.G. to continue attending VVMS.

In April 2012, the plaintiffs and PVUSD entered into a settlement agreement releasing plaintiffs’ IDEA claims. The settlement agreement expressly reserved plaintiffs’ ability to proceed on their other federal claims pending in district court. In May 2013, the district court granted summary judgment in favor of PVUSD on all remaining claims, dismissing plaintiffs’ claims under § 504 and Title II of the ADA, as well as plaintiffs’ state tort law claims.

Ruling/Rationale: The Ninth Circuit panel reversed the district court decision granting PVUSD summary judgement on the § 504 and Title II of the ADA claims and remanded the case to the district court. It began its discussion pointing out that the plaintiffs’ discrimination claims hinged on three overlapping federal disability laws: IDEA, § 504, and Title II of the ADA.

The panel stated that “IDEA focuses on making a FAPE [free appropriate public education] available to disabled students through development of Individualized Education Programs.” It pointed out that § 504 “is broader than the IDEA” because “it is concerned with discrimination in the provision of state services to all individuals with disabilities.”

The panel emphasized that § 504’s regulations require qualifying public schools to “provide a free appropriate public education to each qualified handicapped person.” It stated: “Under those section 504 regulations, FAPE requires ‘regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [34 C.F.R.] §§ 104.34, 104.35, and 104.36.’”

However, the panel pointed out that “a showing that FAPE was denied under the IDEA does not necessarily establish a denial of FAPE under section 504.” It also explained that that while there are differences between § 504, and Title II of the ADA “for purposes of this appeal the elements of a valid Title II claim do not differ in any material sense from those of a valid section 504 claim and the two may be addressed together.”

Turning to the elements required to prove a claim under § 504, or Title II of the ADA, the panel said a plaintiff must show:

(1) she is a qualified individual with a disability; (2) she was denied a reasonable accommodation that [she] needs in order to enjoy meaningful access to the benefits of public services; and (3) the program providing the benefit receives federal financial assistance.

It also pointed out that a public entity can be liable for damages under § 504 if it “intentionally or with deliberate indifference fails to provide meaningful access or reasonable accommodation to disabled persons.”

The panel then turned to the question of whether the district court had erred in dismissing A.G.’s meaningful access and reasonable accommodation arguments. In regard to meaningful access, the plaintiffs contended that PVUSD denied A.G. meaningful access to educational benefits by violating two of section 504’s regulations: 34 C.F.R. § 104.33(b)(1) and 34 C.F.R. § 104.34(a).

Specifically, the panel argued that by placing A.G. at RS she was denied access to certain education programs, such as art, music and gifted classes because those were not available at RS. They also contended A.G. “was inappropriately placed in the Intervention Room for a total of approximately sixty hours.” In addition, the plaintiffs claimed PVUSD “denied A.G. meaningful access to the curriculum at both Vista Verde and Roadrunner because they failed to provide her appropriate behavioral supports and services at the two schools, as reflected in her allegedly deficient IEPs.”

According to the plaintiffs, PVUSD’s transfer of A.G. to RS failed to comply with 34 C.F.R. § 104.34’s procedural requirements, thus preventing A.G. from accessing certain educational opportunities. The panel rejected the district court’s reliance on the fact that the parents had consented to IEP addendum transferring A.G. to RS. It noted that the Ninth Circuit had previously “held that claims challenging the placement of a disabled child are not barred simply because the parents of the child consent, or fail to object, to such placement.”

The panel, instead, was persuaded that a claim that meaningful access has been “improperly denied within the meaning of [§ 504, or Title II of the ADA] is not ‘precluded or waived based on a parent’s consent to an IEP,’ at least where the issue is one that requires specialized expertise a parent cannot be expected to have.” It found, based on the “complex presentation of A.G.’s behavioral challenges,” that “the question whether Roadrunner was an appropriate placement for A.G. required specialized expertise.”

As a result, the panel provided the district court with detail instructions on remand:

(1) which claims for violation of section 504 regulations plaintiffs preserved; (2) whether those regulations fall within the scope of the prohibition contained in § 504 itself; (3) whether the school district violated those regulations; and (4) whether the school district’s violation of those regulations prevented A.G. from accessing her public education.

The panel next took up the issue of whether PVUSD failed to provide A.G. with reasonable accommodations to allow her to meaningfully access her education. The plaintiffs argued that “A.G. needed further behavioral services, including a full time behavioral aide, to meaningfully access her education.” It found the evidence presented by the plaintiffs created “an issue of material fact as to whether accommodations, such as a personal behavioral aide, would have helped A.G. remain at Vista Verde.”

The panel emphasized that § 504 “create[s] a duty to gather sufficient information from the disabled individual and qualified experts as needed to determine what accommodations are necessary.” It, therefore concluded “that a triable factual dispute exists as to whether the services plaintiffs fault the school district for failing to provide were actually reasonable, necessary, and available accommodations for A.G.” As a result, the panel held that the district court’s granting of summary judgment on this issue was improper.

Finally, the panel concluded that the plaintiffs had raised a issue of genuine fact on the question of whether PVUSD had notice that A.G. was in need of accommodation and acted to take action to provide such accommodation. It, therefore, found there was a triable issue of fact regarding whether PVUSD was deliberately indifferent, which would allow the plaintiffs to recover damages on the § 504 and Title II of the ADA claims.

A.G. v. Paradise Valley Unified Sch. Dist., Nos. 13/16239/13-16707 (9th Cir. Mar. 3, 2016)

[Editor’s Note: In August 2013, Legal Clips summarized a decision by a Ninth Circuit three-judge panel in K.M. v. Tustin Unified Sch. Dist. holding that compliance with IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act or  under the Americans with Disability Act (ADA).  As a result, a school district’s provision of an IEP valid under the IDEA does not automatically preclude liability under Section 504 or the ADA. The panel also determined that there are material differences in the obligations imposed by the IDEA and the ADA to provide services to hearing impaired students.

In January 2014, Legal Clips published a Sua Sponte item announcing that NSBA and the California School Boards Association had filed an amicus brief with the U.S. Supreme Court in support of the school district, asking the Court to  review and reverse the Ninth Circuit’s erroneous decision. The brief argued in part that “courts have consistently held that educational decisions for students with disabilities are governed by the provisions of the IDEA and its IEP team process.” ]


ACLU threatens lawsuit against California district accusing school officials of allowing religious endorsement in the classroom

The San Gabriel Valley Tribune reports that the American Civil Liberties Union of Southern California (ACLU-SoCal) has sent a letter to Azusa Unified School District (AUSD) regarding a high school science teacher’s “regular endorsement of religion” in the classroom. ACLU-SoCal claims the teacher, Michael Martinez, displays a large picture of Jesus Christ in the front of the room, has Bible verses on the walls and regularly voices his doubts about evolutionary theory during class.

ACLU-SoCal Legal Director Peter Eliasberg’s letter contends: “Mr. Martinez is clearly violating the constitutional rights of students at Azusa High School. If the school and district do not take immediate steps to end his improper endorsement of religion, they will likely be the subject of a lawsuit, which they will certainly lose.” The letter also alleges that Martinez actively promotes student involvement in an on-campus religious club, Cross Trainers, at which he leads prayers and reads from the Bible at club meetings.

Superintendent Linda Kaminski said the district is investigating the claims and, if necessary, will take corrective action. “The District is aware of allegations – recently made by the ACLU – that a teacher at Azusa High School is promoting religion to students,” Kaminski said in a statement. “As a public school, the District cannot permit an establishment of religion. Students may, however, participate in meetings of student religious groups on campus on a voluntary and student-initiated basis, pursuant to the federal Equal Access Act.”

Kaminski said the district’s policy on the matter is in line with the law, which prohibits promoting religion in the classroom. Teachers, as appropriate for a particular class, may objectively discuss the influences of various religions, but instruction about religion “shall not promote or denigrate the beliefs of customs of any particular religion,” she said.

Source: San Gabriel Valley Tribune, 3/4/15, By Courtney Tompkins

[Editor’s Note: In January 2012, Legal Clips summarized a decision by, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in Johnson v. Poway Unified Sch. Dist. holding that a California school district did not violate a high school teacher’s free speech or equal protection rights, or the Establishment Clause when the school’s principal ordered the teacher to remove banners displayed in his classroom that contained religious references. The panel reversed the federal district court’s grant of summary judgment in favor of the teacher on all claims. In regard to the free speech claim, it concluded that the lower court had erred by applying forum analysis. The panel found that the speech issue should be analyzed in accordance with the multi-prong test established by Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968) and its progeny.]

Federal court judge approves desegregation order negotiated between Mississippi district and DOJ

According to The Dispatch, U.S. District Court Judge Michael P. Mills has approved a desegregation order negotiated between Starkville-Oktibbeha Consolidated School District (SOCSD) and the U.S. Department of Justice (DOJ) that sets the school attendance zones agreed upon by both sides.The student assignment plan is expected to change once funding is secured for a SOCSD-Mississippi State University partnership school, which will educate all countywide sixth and seventh graders.

Other provisions governing student transfers, advanced placement programs, extracurricular activities, transportation, school construction and staff issues are included in the report to prevent the creation of a dual school system. The school district will report a slew of information to the court and DOJ annually, including the racial composition of its student body, staff, teachers and administrators; transfer requests; classroom enrollment; hirings and other staffing matters; proposed campus construction plans; district transportation information; and other targeted data points.

SOCSD Superintendent Lewis Holloway said he is relieved the school district and DOJ could reach a compromise and avoid a lengthy court fight. “After working for a year and a half on this, we’re very glad to have conclusion and a resolution we can live with. I think it’s a good deal, and we can now turn our focus back to educating all Oktibbeha County school children,” he said.

Last year, Judge Mills approved a temporary desegregation order and tasked both sides with developing a permanent plan this year. DOJ previously objected to operating East at the same 94 percent African-American enrollment previously allowed by the former Oktibbeha County School District. It also objected to separating county and city school district sixth graders at different campuses, while countywide high schoolers would join together at SHS.

Source: The Dispatch, 3/3/16, By Carl Smith

[Editor’s Note: In January 2013, Legal Clips summarized an article in The Bolivar Commercial reporting that Glen H. Davidson, Senior U.S. District Court Judge for the Northern District of Mississippi, had issued an opinion in response to DOJ’s allegation that the Cleveland School District (CSD) was continuing to practice a form of segregation by operating separate middle schools and high schools, which had nearly 100% black student populations. CSD had been under a court-ordered desegregation plan since 1965. The judge stated: “The Court is of the opinion that the attendance zones, … , perpetuate vestiges of racial segregation. The high school and junior high school students should have a true freedom of choice to attend either high school and either junior high school. Accordingly, the Court orders that the heretofore-established attendance zones shall be abolished, thus establishing an open-enrollment procedure.”]



Teacher resigns from position at South Carolina high school after student accesses her cell phone and sends out text messages with nude photo of teacher

According to WYFF 4, Leigh Anne Arthur, a teacher at Union County High School (UCHS), has resigned after a student spread a nude picture of her through text messages and social media. Superintendent David Eubanks said a student got hold of Arthur’s phone and took a picture of a nude picture that was on her phone. He said the student then sent the picture out through text messaging and social media.

Eubanks said Arthur was responsible because her phone was unlocked and she made the nude picture available to her students. Arthur said she took the picture to give to her husband. She said the student took the phone from her desk while she was patrolling the halls. Arthur believes the student should be held responsible for his actions.

The Union County Sheriff’s Office is now investigating. Eubanks said the Sheriff’s office will determine whether the student is charged.

Source: WYFF 4, 3/2/16, By Staff

Update: WYFF 4 reports that a student has been charged as a juvenile with distributing pictures of a teacher from the teacher’s cell phone. According to local law enforcement, the student was charged with computer crimes and aggravated voyeurism in the incident involving uploading the photos. The South Carolina Law Enforcement Division confirmed that the pictures that the teen took from the phone were stored in his phone in a pass code-protected file that contained other pictures that were sexual in nature.

Source: WYFF 4, 3/5/16, By Alex Ramsey

[Editor’s Note: In August 2010, Legal Clips summarized an Associated Press article in the Philadelphia Inquirer reporting that the Brownsville Area School District had agreed to pay a teacher and the American Civil Liberties Union (ACLU) $10,000 and to refund more than $4,400 in back pay that she lost when she was suspended over a Facebook photo of her and a stripper.] 

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