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Parents’ suit alleges Connecticut is failing to provide expelled students with a constitutionally adequate education

Youth today reports that two families have filed suit against the state of Connecticut challenging the quality of education given to students who are expelled from public schools. The lawsuit alleges that expelled students receive an inferior education, in violation of the state’s constitutional guarantee of an adequate education and their right to equal protection under state and federal law.

The suit claims that the two student plaintiffs struggled to access complete and challenging curriculums during their expulsions from middle school. The suit states that one of the students spent fewer than three hours per day in a school setting, struggled to get assignments from her home school and received no grades for the work she completed in an alternative program. The plaintiffs contend Connecticut should set clear, adequate standards for education during expulsion to avoid a repeat of the plaintiffs’ experience. About 1,000 students are expelled from the state’s schools each year, according to the lawsuit.

The lawsuit also said that because black students are disproportionately expelled from public schools in Connecticut, they also are disproportionately deprived of their educational rights. During the 2013-14 academic year, black students made up 13 percent of the state enrollment but accounted for 31 percent of expulsions, according to state data cited in the lawsuit.

The lawsuit names Gov. Dannel P. Malloy, as well as officials from the state Department of Education and Board of Education and the superintendents in three school systems: Hartford, Manchester and Bloomfield.

The state Department of Education referred questions about the lawsuit to the attorney general, but released a statement that said suspensions and expulsions in the state are declining. “The decline in suspensions and expulsions is a testament to the work being done to address the problem by engaging partners, identifying best practices in behavioral management, and providing training on family engagement, mental health referrals, de-escalating confrontation and restorative justice,” the department said in their statement.

The statement added that more work remains to be done, including partnerships that try to engage students in school and divert them from the juvenile justice system.

Source: Youth today, 1/21/16, By Sarah Barr

[Editor’s Note: In July 2011, Legal Clips summarized the decision of The Wisconsin Supreme Court in Madison Metropolitan Sch. Dist. v. Circuit Ct. for Dane Cnty. holding that a state court does not have statutory authority to order a school district to provide alternative educational services to a student expelled from school in accordance with a lawful and unchallenged expulsion order. The court concluded that even though state law governing delinquency petitions requires a school board to cooperate with the court in regard to a student or former student who is the subject of a delinquency petition, that law “does not require a school board or a school district to provide alternative educational resources to a juvenile who has been expelled from school” pursuant to the statute governing a school board’s authority to expel a student.]

Nevada attorney general asks state supreme court to dissolve lower court’s order preventing state from proceeding with its Education Savings Account program

Courthouse News Service reports that the Nevada Attorney General (AG) is asking the Nevada Supreme Court  to overturn an injunction preventing the state from implementing its Education Savings Account (ESA) program.  First District Court Judge James Wilson Jr. issued a preliminary injunction prohibiting state officials from proceeding with the ESA, which would provide state funds to parents for private school tuition. In June 2015, the state legislature passed Senate Bill 302 (S.B. 302), which allowed the state to send $5,000 a year to parents for each child they place in a private school, at home or online, so long as the child at one time attended a public school for 100 days.

Three lawsuits were filed challenging the constitutionality of the bill, as it allowed tax money to go to schools that discriminate on the basis of religion, race, disability or other grounds. Judge Wilson issued the injunction in Lopez v. Schwartz. 

Nevada AG Adam Laxalt appealed the preliminary injunction to the state supreme court. “My office is working diligently so that parents can enjoy the genuine educational choice envisioned by lawmakers this past legislative session, and remains focused on resolving the matter as quickly as possible to provide families with the certainty they deserve. A ruling from the state Supreme Court will do just that,” Laxalt said.

Supporters of the ESA program assert that it will improve education by, among other things, reducing class sizes. However, this reasoning neglects to account for lost federal funding, most of which comes in the form of Average Daily Attendance, or ADA money. ADA funding varies by state and district and is fiendishly difficult to pin down: Nevada’s 200+ page annual reports on its schools do report on the percentage of students who attend, but do not mention how much ADA money schools get from Washington.

Estimates from other states give a rough estimate of $28 per day per student. In other words, if a student misses a week of classes, federal ADA funding for his or her school will be reduced by $140. Based on a 180-class-day school year, removing one student from a public school will cost his or her district $5,040 in federal ADA funding. Add Nevada’s $5,000 handout under S.B. 302 and public schools will lose more than $10,000 in funding for each student subsidized in a private or home school, which is more money than Nevada spends on each pupil in a public school.

Nevertheless,  private school advocates say many Nevada families need the program to keep their kids in good schools. “Thousands of families who were depending on the education savings accounts to improve their children’s lives … were devastated by the decision,” the Nevada Policy Research Institute said.

Nevada’s 150 plus private schools serve about 30,000 students. About 53% of them are religiously affiliated, overwhelmingly Christian. Were all their parents to get $5,000 subsidies, it would divert $151 million from public to private schools or home schools, and cost the state another $152 million in lost federal ADA funding.

Source: Courthouse News Service, 1/201/16, By Mike Heuer and Robert Kahn

[Editor’s Note: In January 2016, Legal Clips summarized an article in the Las Vegas Review Journal reporting that Judge James Wilson issued an order granting the plaintiffs’ motion for a preliminary injunction, which bars the state from proceeding with implementation of the ESA program. Wilson said because SB 302 diverts some general funds appropriated for public schools to fund private school tuition, it violates sections of the constitution. “Plaintiff parents have met their burden of clearly proving that there is no set of circumstances under which the statute would be valid …” Wilson wrote. In granting the injunction, he said opponents of ESA demonstrated reasonable probability they would prevail at trial.

NSBA filed an amicus brief supporting plaintiffs in this matter.]

U.S. Supreme Court hears argument in case involving police officer who claims he was demoted based on perceived political allegiance

The U.S. Supreme Court has heard argument in Heffernan v. City of Patterson, No. 14-1280, in which former Paterson, New Jersey police officer Jeffrey J. Heffernan claims his First Amendment rights were violated when he was demoted based on the perception that he backed a challenger to the incumbent mayor, says nj.com. Heffernan was demoted after supporters of Mayor Jose “Joey” Torres saw him picking up a campaign sign for challenger Lawrence Spagnola, a former police chief, but the police officer said he was off duty and simply was picking up the sign for his mother.

Some justices questioned whether Heffernan could claim that his freedom of speech and association rights were being violated because he didn’t exercise them.  “He was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason,” Justice Antonin Scalia said. “That’s what happened here.” As for Heffernan’s claims that his right to freedom of association was violated, Scalia said, “He was associating with his mother, I suppose. He was not associating with any political views.”

Justice Anthony Kennedy said he wondered “what was the right that was being asserted.” And Chief Justice John Roberts questioned whether Heffernan had other ways to challenge his demotion, perhaps through state law. Heffernan’s lawyer, Mark Frost, argued that it didn’t matter that Heffernan wasn’t engaged in political activity. The fact that he was demoted for a perceived activity could have a “chilling effect” on others trying exercise their rights, he said. “You would have to think twice before you did something,” he said.

A lawyer for the U.S. government also argued in favor of Heffernan, who has since retired from the Paterson police force. Ginger D. Anders, assistant to the U.S. solicitor general, said a court ruling against Heffernan could create a “loophole” where officials dismissed employees who were not politically involved, thus sending a message without running afoul of the First Amendment. “The other employees will know that the employer expects political orthodoxy,” Anders said.

The lawyer for the city of Paterson, Thomas C. Goldstein, faced his own skepticism from the justices. The city has argued that since Heffernan was not politically active, there were no rights to violate. “Is there actually a constitutional right here?” Goldstein said. “Can you encourage people to be politically active and then fire them because they are politically active the wrong way?” Kennedy asked.

Justice Ruth Bader Ginsburg raised the issue of a woman employee who was fired because her boss thought what was simply a weight gain was a sign she was pregnant. “Does she have a sex discrimination case because she wasn’t pregnant?” she asked. And Justice Elena Kagan suggested this was a case of officials firing someone because he didn’t agree with their views. “That’s the whole point of the First Amendment,” she said.

Source. nj.com, 1/19/16, By Jonathan D. Salant

[Editor’s Note: In August 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Fifth Circuit panel in Mooney v. Lafayette Cnty. Sch. Dist. holding that a former assistant principal stated a valid claim that her school district retaliated against her for engaging in political speech. It found that she had provided sufficient evidence to survive a motion for summary judgment.]


Parents are considering suit against Pennsylvania middle school over anti-bullying program

According to CBS Pittsburgh, a group of parents of students at West Allegheny Middle School (WAMS) have retained an attorney and are contemplating filing a class action suit alleging that WAMS officials violated students’ rights. The source of the parents’ anger was an exercise conducted at a recent student workshop during which students were asked questions among their peers and then “grouped” based on their answers.

There were more than two dozen questions. The statements included:

“Please move to the middle of the circle if:”

  • You have been impacted by drugs or alcohol
  • You have been called fat or made fun of
  • You or someone close to you identifies as gay, lesbian, or transgendered
  • You have been impacted by mental challenges or learning disabilities
  • You or your family has ever worried about not having enough money
  • You or someone close to you has been imprisoned
  • You have been raised by a single parent

The school district indicates that participation in the exercise was voluntary and students did not have to answer the questions if they did not feel comfortable. However, parents believe they should have seen the questions prior to the workshop.

The school district held a closed door meeting with the parents, excluding the media. After the meeting school board president Debbie Mirich said, “We do stand behind the intentions of our workshop and we look forward (to) continuing our work with parents to address this very serious issue of bullying and the unintentional acts that continue to marginalize different groups of students.” Mirich acknowledged that the school board did not have any direct involvement in facilitating the workshop.

West Allegheny School District Superintendent Jerri Lynn Lippert says school officials are reaching out to the parents upset by the program. “What I think went wrong with this is we did not do a thorough vetting process with parents. Had the workshop involved parents in the planning, I don’t think we would be here.”

Source: CBS Pittsburgh, 1/20/16, By Kym Gable

[Editor’s Note: In July 2014, Legal Clips summarized an article in the Claims Journal reporting that Bradley Lewis, the father of a high school student who committed suicide, filed a wrongful death suit in federal court against Carterville school district and 3Screens.com, producers of an anti-bullying video, among others. The suit alleges that Jordan, a student at Carterville High School (CHS), was routinely subjected to peer bullying by members of the football team that involved both verbal and physical assaults. Among other allegations in the suit, the father said that the day before Jordan’s suicide, CHS officials required all students to watch a film titled “Piercing the Darkness,” which was meant to inform students about the potential “darkness” of drug abuse, bullying and disabilities – and how to brighten their lives and others. The film “showed pictures of young students that had committed suicide due to bullying.” Afterward, the lawsuit submits, Jordan expressed suicidal thoughts to a student, who allegedly told Jordan that he didn’t have the nerve to do it.]

Detroit district files suit to end massive teacher “sick-out” that has forced closure of most of the district’s schools

Faced with massive teacher sick-outs that forced the closure of 85 of Detroit’s public schools, Detroit Public Schools  (DPS) has responded with a lawsuit aimed at forcing teachers back into the classroom, according to an Associated Press (AP) report on CBS Detroit. Disgruntled Detroit teachers have stepped up efforts to protest Gov. Rick Snyder’s plans for the district, its ramshackle finances, their low pay, dilapidated buildings and overcrowded classrooms.

DPS is seeking an injunction in the Michigan Court of Claims, naming the teachers’ union, activists and two dozen teachers as defendants. The state-appointed emergency manager for DPS said the sick-out closed 88 schools and caused nearly 45,000 students to miss classes. Darnell Earley called the sick-out “a publicity stunt” and said “sooner or later, the families who have been so adversely affected by these sick-outs will express their displeasure and voice their disdain of these actions.”

The closures come after more than 60 schools were closed on Jan. 11 because of an absence of teachers. Other sick-outs affecting a smaller number of schools have taken place as well. In response, city officials have started inspecting schools for any code and safety violations.

Mayor Mike Duggan has called for teachers to stop the sick-outs and return to their classrooms while state legislators work on solving the district’s financial crisis, saying the “frustrations are legitimate, but the solution is not to send the kids home.” The governor has pushed state lawmakers to pass bills to overhaul the school district by splitting it in two. Already, the district is run by an emergency manager appointed by Snyder.

DPS said it has no choice but to close schools when teachers don’t report to work.

Source: CBS Detroit, 1/20/16, By Corey Williams (AP)

[Editor’s Note: In September 2011, Legal Clips summarized an article in the News Tribune reporting that Washington Superior Court Judge Bryan Chushcoff had approved a temporary restraining order (TRO) requiring striking Tacoma teachers to return to work and both sides to resume negotiations. The TRO required the teachers to return to work until a full hearing can be held on the legality of their walkout or until they reach a contract agreement with the school district, whichever comes first.]


New Mexico court orders high school officials to bypass state mandated concussion protocols and allow football player to play in game

According to The Washington Post, the parents of a high school football player successfully sued high school officials who planned to hold the player out of the state championship game pursuant to the state’s mandated concussion protocol.  A state trial court judge granted the parents’ motion for a temporary injunction, ordering school officials to forego the state mandated concussion protocols, which require the player to be held out of the next game, and allow him to play.

Shawn Nieto, a running back on Cleveland High School’s football team, suffered a blow to the head during his team’s state semi-final game. School officials say Shawn was knocked unconscious for 20 to 30 seconds and suffered a concussion. As a result, under state law he was forced to sit out seven days to recover, which meant that he would miss the following week’s state championship game.

Shawn says he never lost consciousness, and his family insists he didn’t suffer a concussion. So they hired a lawyer and filed a motion in court last month, pleading with a judge to let Shawn play in the title game.

Because of growing concerns over head injuries, states have passed laws to ensure that high schools monitor player safety better. Nonetheless, there is a great deal of uncertainty and inconsistency about head injuries in young athletes. A Harris Poll last year found that 87% of adults can’t correctly define a concussion, and 37% say they’re confused about what a concussion is.

Nieto’s parents say concussion hysteria has made the sport’s decision-makers overcautious at times. “That’s the bogey-man blanket they’re throwing in sports now,” said Peter Nieto, Shawn’s father. By barring Shawn from competing, the family said the school district violated his constitutional right to due process, his state constitutional right to participate in extracurricular activities and interfered with his educational opportunities.

School district officials in Rio Rancho, meanwhile, say they were just following the law and protecting the young player’s health and well-being. However, based on the evidence presented in state court, the judge granted a temporary injunction allowing Nieto to play in the state title game.

The parents insist the school never gave any training related to concussions, but they were given an informational sheet and required to sign a form. According to Shawn, he was told the next day at school that he would have to go through the concussion protocol and would be unable to play in the state championship game. The trainer explained that Shawn was unresponsive and had been knocked unconscious. The parents say they were never given any paperwork to support the school’s assessment and never observed any symptoms that Shawn had suffered a head injury in the game.

The parents made a doctor’s appointment for the following day. Shawn met with a doctor and exhibited normal cognitive ability, orientation, memory recall and concentration, according to the family’s court filing. Backed by the doctor’s recommendation, the Nietos became even more determined for him to play in the state title game and explored their legal options.

The school district, meanwhile, was just as adamant that Shawn had been injured and state law required he sit out seven days. “There’s no wiggle room,” said Bruce Carver, the school district’s athletics director. “If somebody thinks it is [a concussion], we go the safe road and keep him out.”

All 50 states, and the District, have passed laws that address concussion safety in youth sports, but the particulars vary. A concussion might be diagnosed differently in South Carolina than Colorado, and the required recovery might be different in California than Pennsylvania. Arkansas allots money for a program but has no standards in place. Wyoming doesn’t require parents to sign a consent form. Only a handful, such as New Mexico, have a mandatory waiting period before a player can return to action.

While New Mexico’s statute was hailed as one of the toughest when it was signed into law in 2010, opinions vary about whether a mandatory waiting period is effective. A 2009 study looked at 635 high school- and college-aged concussed football players and found that the waiting period “did not intrinsically influence clinical recovery or reduce the risk of a repeat concussion in the same sports season.”

State district Judge Alan Malott scheduled a hearing for Dec. 4, barely 24 hours before the championship game was scheduled to kick off. Neither the school nor the school district showed up in court, and Malott had at his disposal one key piece of evidence: Shawn’s doctor clearing him to play. Malott granted the injunction.

The morning of the title game, though, Karen Ortiz, the physician who examined Shawn, sent a letter to the school district, rescinding her opinion and saying the family was not forthcoming with the extent of Shawn’s injury. “Had I understood that there was a loss of consciousness, I would have never provided medical clearance,” Ortiz wrote.

Shawn suited up for the game, but because he missed a week of practice, he was limited to one play on a kick off. The Nietos remain upset with the letter of the law and the school’s application of it. They’re still confident Shawn never suffered a concussion. School officials overreacted, they say, and Shawn suffered because of it. They plan to write a letter to the local school board suggesting ways the rules could be improved.

Carver, the school district’s athletics director, said the school and team officials “could’ve done a better job communicating,” but they still support the spirit of the law. “We feel like we did what’s best for the kid and trying to protect him,” he said.

Source: The Washington Post, 1/19/16, By Rick Maese

[Editor’s Note: In December 2015, Legal Clips summarized an article in The Pittsburgh Tribune-Review reporting that the parents of three student-athletes had filed a class action suit against the Pennsylvania Interscholastic Athletic Association (PIAA), alleging that PIAA, as the governing body of interscholastic sports in Pennsylvania, has done little to protect student-athletes from or help them with concussions suffered while playing high school sports. The suit recounts how each one of the named student-athletes suffered concussions, which were either inadequately treated or were ignored.]



Pennsylvania School Boards Association files school funding suit against governor and state legislature

The Pennsylvania School Board Association (PSBA) filed a lawsuit in the Commonwealth Court of Pennsylvania against Gov. Tom Wolf and the state legislature, reports Fox 43.  PSBA asks the court to prevent the state from withholding funding and also seeks damages for lost income and borrowing costs caused by going six months without state and federal aid.

PSBA Executive Director of PSBA Nathan Mains said, “Districts that should have had those reserves planned on making some interest off of that and budgeted to spend that interest to provide educational services to students. They’re without that. Certainly that hurt. The cost of taking out loans and taking out lines of credit has also been a terrible burden on the districts.” Because of the budget impasse, schools had to borrow almost $1 billion. Although Wolf authorized emergency funding, the PSBA said it doesn’t make up for the past six months.

The Democratic governor and Republican legislature place the blame for the budget impasse on each other. Mains said he doesn’t want this to happen again. “We want the courts to make sure that the dollars that have been held for the last six months are put out now – both federal and state dollars,” he said. “And that no one can change their mind because as unpredictable as the last six months have been, we don’t want to go through another six months like this.”

Source: Fox 43, 1/8/16, By Caitlin Sinett

[Editor’s Note: PSBA’s press release announcing the suit states:

The lawsuit makes several claims, including:

  • School districts have lost significant amounts of investment income that they are required by law to budget for and use to offset taxes and expenditures;
  • The state violated the Equal Protection Clause of the Constitution by funding state government during the impasse without funding school districts;
  • Federal law requires the timely payment of federal pass-through funds even in the event of a budget impasse by the state; and
  • The state has been holding money in “constructive trust” for school districts so that the investment income that has been earned by the commonwealth properly belongs to school districts and their taxpayers.

PSBA Executive Director Mains said, ” The governor’s partial release of funds this week has been encouraging, but we believe it still is necessary for the courts to make clear that the timely distribution of both state and federal funding is not a matter of discretion, but instead is an ongoing legal duty.”

In May 2015, Legal Clips summarized an article in the Pittsburgh Post-Gazette reporting that a Pennsylvania Commonwealth Court has ruled that the power to make decisions on school funding rests with the General Assembly and not the courts. As a result, it dismissed a suit brought by a coalition of school districts, parents and education associations. The Commonwealth Court’s decision sets up an appeal to the Pennsylvania Supreme Court in a lawsuit claiming that Pennsylvania’s funding system fails to meet the state’s obligation to students in poorer school districts.]

Federal district court in California rules that Title IX is applicable to claims based on sexual orientation discrimination

Videckis v. Pepperdine Univ., No. 15-00298 (C.D.Cal. Dec. 15, 2015)

Abstract: A federal district court in California has ruled that Title IX encompasses claims based upon sexual orientation as either gender stereotyping discrimination or sex discrimination. The district court stated that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best.”  It concluded “the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.”

The court, therefore, held that discrimination based on sexual orientation is a cognizable theory of liability not only under Title VII, but also Title IX. However, such claims are not a separate category of claims from sex and gender stereotype. Instead, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims. It stressed that the “actual” orientation of a sexual orientation victim is irrelevant.

The district court also concluded that the plaintiffs had stated a valid Title IX claim based on gender stereotype discrimination based on the defendants’ alleged perception of the plaintiffs as lesbians. In addition, it found that the plaintiffs had stated a valid Title IX claim for sex discrimination based upon the plaintiffs’ perceived lesbianism. Finally, the court upheld the plaintiffs’ Title IX retaliation claim.

Facts/Issues:  Former members of Pepperdine University’s (PU) women’s basketball team filed a lawsuit against PU alleging discrimination and retaliation under Title IX. Specifically, the plaintiffs claim that PU women’s basketball team officials harassed and discriminated against them, based on their perceived sexual orientation as lesbians, in an attempt to force them to quit the team.

In addition to a number of state law claims, the plaintiffs raised three Title IX claims: (1) Title IX – deliberate indifference; (2) Title IX – intentional discrimination; and (3) Title IX – retaliation. PU filed a motion to dismiss the Title IX claims.

PU raised three arguments in support of its motion: (1) Title IX does not apply to claims based on sexual orientation discrimination; (2) plaintiffs’ allegations do not support a Title IX claim based on gender stereotype discrimination; and (3) the Title IX claims should be dismissed because they are uncertain and not legally cognizable. PU also contended that the fifth cause of action, for retaliation under Title IX, failed because plaintiffs had not alleged any actionable retaliation.

The Plaintiffs opposed the motion arguing that they have stated an actionable Title IX claim because: (1) Title IX covers sexual orientation discrimination; and (2) even if Title IX does not explicitly cover sexual orientation discrimination, the actions alleged by the plaintiffs constitute gender stereotype discrimination. The plaintiffs also argue that they have alleged a straightforward claim of discrimination on the basis of sex.

Ruling/ Rationale: The district court denied PU’s motion to dismiss. Addressing the plaintiffs’ claim that Title IX applies to claims of discrimination based on sexual orientation, it pointed out that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best.” Further illumination of the issue led the court to conclude “that the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.”

As a result, the district court held that Title IX is applicable, just as Title VII is, to sexual orientation discrimination claims, not as a category of “independent claims separate from sex and gender stereotype,” but, instead, on the same basis as gender stereotype or sex discrimination claims. It stated that the difficulty in drawing the line between sex discrimination and sexual orientation discrimination results in fact because “that line does not exist, save as a lingering and faulty judicial construct.”

The court rejected the reasoning in the case law cited by PU because those cases fail to “fully evaluate the nature of claims based on sexual orientation discrimination.” It pointed out that focusing on the perceived status of  the alleged victim, rather than the alleged perpetrator’s bias, “asks the wrong question and compounds the harm.” It stated:

A plaintiff’s “actual” sexual orientation is irrelevant to a Title IX or Title VII claim because it is the biased mind of the alleged discriminator that is the focus of the analysis. This is especially true given that sexuality cannot be defined on a homosexual or heterosexual basis; it exists on a continuum.

It, therefore held:

[T]he Court finds that sexual orientation discrimination is a form of sex or gender discrimination, and that the “actual” orientation of the victim is irrelevant. It is impossible to categorically separate “sexual orientation discrimination” from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender.

Turning to the gender stereotype discrimination claim, the district court stressed that the focus of the claim is on the plaintiffs’ perceived failure to conform to a stereotype and is actionable discrimination under Title IX. It concluded: “Plaintiffs have stated a claim for discrimination because they allege that Pepperdine treated them differently due to their perceived lack of conformity with gender stereotypes, and further that Pepperdine discriminated against them based on stereotypes about lesbianism.”

The district court also upheld the plaintiffs’ Title IX sex discrimination claim, stressing that they had alleged that PU’s treatment of them was based on the fact that team officials believed the plaintiffs were lesbians involved in a relationship. It found that “because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”

In addition, the district court upheld the Title IX retaliation claim, rejecting PU’s attempt to focus on whether there was an actual relationship between the players. Finally, it rejected PU’s argument that the plaintiffs’ Title IX claims are “uncertain and not legally cognizable.” It found “the argument is unavailing in light of the liberal pleading standards of Federal Rule of Civil Procedure 8.”

Videckis v. Pepperdine Univ., No. 15-00298 (C.D.Cal. Dec. 15, 2015)

[Editor’s Note:  The Plaintiffs in Videckis also requested prejudgment interest. The court denied their request.

In May 2014, Legal Clips summarized an article in Education Week reporting that updated Title IX guidance released by the U.S. Department of Education (ED) clarifies that the civil rights law’s protection extends to all students, regardless of sexual orientation or gender identity. ED’s announcement was contained in a 45 page Dear Colleague Letter (DCL) whose subject is sexual violence at the collegiate level. ED’s announcement of its interpretation of Title IX’s applicability to sexual orientation and gender identity, though, applies equally to public elementary and secondary schools.]



Sexual assaults an issue at both college and K-12 level say U.S, Dep’t of ED

According to Catherine E. Lhamon, assistant secretary for civil rights at the U.S. Education Department (ED), the problem of sexual violence in K-12 schools is similar in many ways to the problem on college campuses, but there are also important differences, including the inexperience of young children and the power dynamics between adults and students, reports The Washington Post. “We should not have blinders on about how early sexual violence can take place,” said Lhamon.

A study by researchers at the University of Illinois at Urbana-Champaign found that 21% of middle school students reported that they had experienced unwanted physical touching on school grounds. A 2013 Centers for Disease Control and Prevention survey reported that among high school students, 4% of boys and 10% of girls say they have been forced to have sexual intercourse against their will.

The Obama administration has taken an aggressive approach to enforcing the anti-discrimination law known as Title IX, which requires K-12 schools and colleges to guard against sexual harassment and sexual violence. ED in fiscal 2015 received 65 civil rights complaints related to K-12 school districts’ handling of sexual violence — triple the number the agency had received the year before.

ED is investigating 74 cases in 68 school districts, more than double the number of open investigations it reported 14 months ago. “Colleges are now really starting to feel enough pressure that they know they have obligations,” said Cari Simon, a lawyer who has represented sexual assault victims across the nation. “In the K-12 cases, I have seen a lot of complete incompetence, a complete lack of even knowing they have responsibilities.”

Francisco Negron, general counsel for the National School Boards Association, challenged that characterization. “Most schools do know what Title IX is and have internal complaint procedures to address Title IX harassment complaints,” he said. He pointed out K-12 schools often face the difficult job of trying to address complaints that pit the word of one student against another. School districts contend that the Obama administration has overreached in its interpretation of Title IX, significantly expanding situations in which schools are required to take action. “I think school districts are struggling as they understand the law to make sure kids are safe and respond appropriately,” Negron said.

Lhamon, on the other hand, says federal investigations have repeatedly found problems with recordkeeping at school districts. Other concerns that Lhamon said have turned up repeatedly: A failure to notify students of their Title IX rights, including how to report an assault, and a tendency to disbelieve the victim and punish him or her for engaging in sexual activity. When an investigation by ED turns up shortcomings in a school district, school officials usually sign a resolution agreement detailing what they will do to improve. ED could withhold federal funds from districts that refuse to come into compliance, but it has never taken that step.

Esther Warkov and Joel Levin, whose daughter was allegedly raped in 2012 during an overnight field trip with her Seattle high school, believe that addressing the problem will take a massive movement of students and families who know what their Title IX rights are and demand that schools meet them. “It’s fine to have a few people filing OCR complaints, but it doesn’t address the magnitude of the problem,” Warkov said. She and her husband are raising funds to create online materials and trainings that reach thousands of families and schools through the nonprofit organization they founded last year, Stop Sexual Assault in Schools.

Source: The Washington Post, 1/17/16, By Emma Brown

[Editor’s Note: In October 2015, Legal Clips published a Sua Sponte item reporting that The National School Boards Association (NSBA) and the Texas Association of School Boards (TASB) had filed a friend of the court (amicus) brief in Salazar v. South Antonio Independent School District urging the U.S. Court of Appeals for the Fifth Circuit to reverse the district court’s ruling holding the school district liable under Title IX for the sexual harassment of a student by a school official in a supervisory position on the ground that the perpetrator’s guilty knowledge was chargeable to the school district and that such knowledge satisfied the actual knowledge requirements of Title IX. The NSBA/TASB brief called upon the Fifth Circuit to reject imposing a strict liability standard under Title IX and instead follow the U.S. Supreme Court’s decision in Gebser v. Lago Vista Independent School District, which indicates that the wrongdoer’s knowledge of his own misconduct does not equate to “actual knowledge” under Title IX.]


Assistant principal at Virginia high school threatens to suspend student for recording conversation with the administrator

Stephen Hall, assistant principal at Massaponax High School, told student Evan Stone that he would suspend Stone for five days, reports PINAC News, if the student used his cell phone to make an audio recording of the conversation between Hall and Stone regarding Stone’s alleged talking violation. According to Stone, he was recording the conversation in order to have proof of what was said. Hall said, “If you record this conversation, or if I find it online, I will give you five days out of school suspension.”

Stone insisted he had a First Amendment right to video and audio record. “Not in this building, because I am the authority in this building,” said the assistant principal. He also said, “I set the rules and regulations and I can regulate when you can and can’t use your cell phone.” Stone, nonetheless, audio recorded their discussion.

Hall noted that if a teacher asks a student to put their phone away, they must. If a student keeps the phone out, it is a violation of the code of conduct, allowing the teacher to confiscate the phone.

In 2010, a federal district court in Mississippi  ruled that a school had the right to search a student’s phone after confiscating it.

Source: PINAC News, 1/12/16, By Joshua Brown

[Editor’s Note: Although the PINAC News article correctly stated that the federal district court in Mississippi upheld school officials’ search of the student’s cell phone on Fourth Amendment grounds, the court also found that the student had a valid due process claim against the school district for disciplinary action taken against the student based on what the search had revealed. In December 2010, Legal Clips summarized the district court’s decision in J.W. v. DeSoto Cnty. Sch. Dist. holding that school officials did not violate a student’s Fourth Amendment search and seizure rights when they searched the contents of the student’s cell phone after confiscating it pursuant to school district policy prohibiting the possession and use of cell phones at school. It concluded that the individual officials were entitled to qualified immunity from the student’s Fourth Amendment claim. The district court ruled, however, that the student had stated a valid due process claim against the school for the disciplinary measures taken against him based on what was found on the phone during the search.

In February 2011, Legal Clips summarized an Associated Press article in the Clarion Ledger reporting that DeSoto County School District (DSCSD) has agreed to settle a suit over the search of the contents of a middle school student’s cell phone that had been confiscated by school officials for violation of the school district’s cell phone policy.]

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