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New Hampshire board reverses course and amends rules that restricted board member speech, allowing dissenters to comment publicly

The Eagle-Tribune reports that the Timberlane Regional School Board (TSB) has amended two recently adopted rules after the New Hampshire Civil Liberties Union (NHCLU) threatened to sue the school board.  The NHCLU charged that the board rules violated school board members’ First Amendment free speech rights.  In a 5-1 vote, the board amended Rules 7 and 8.

Original Rule 7 required all members to back board decisions, regardless of how they voted.  The new version of Rule 7 says a board member is “under no obligation to publicly support a board decision and is not restricted from publicly criticizing or expressing opposition to a board decision.”

Rule 8 as originally approved prohibited any board member other than the chairman from speaking to the press.  The amended Rule 8 permits board members to comment to the press as individuals.  New language also encourages individual board members to ask the press to contact the chairman, who would comment on the entire board’s behalf.

TSB amended the rules after the NHCLU notified the school district that the two rules violated the U.S. and New Hampshire Constitutions.  Attorneys for the district and NHCLU consulted earlier this week.  They agreed to language that accomplished the board’s goal of providing a unified voice, while not violating members’ constitutional right to express their personal views or disagree with decisions, according to NHCLU attorney Gilles Bissonette and Superintendent Earl Metzler.

The board is also revisiting Rule 5, which says all email sent to the board’s address can only be answered by the chairman.  Some board members feel they should have the right to respond to any board email.  Rule 5 was referred to the board’s legal counsel for review before any further board action.

Source: Eagle-Tribune, 4/4/14, By Doug Ireland

[Editor's Note: In April 2014, Legal Clips summarized an article in the Eagle-Tribune reporting on NHCLU's letter demanding that TSB repeal the two rules.]

Suit against NJ district claims attendance policy discriminates against disabled students

The Courier-Post reports that a disabled student is suing the Haddon Heights school district alleging that its attendance policy discriminates against students with disabilities.  The policy requires students to repeat a grade if they miss more than 33 days of school, even if the absences are excused.

According to the suit, the student, who suffers from a chronic medical problem, is in danger of being held back because the student has missed 37 days of school, even though all but six were excused with a note from a doctor.  His attorney, Judith Gran, said, “I understand consequences for unexcused absences, but I’ve never heard of punishing students for absences that have been excused by a doctor.”

Superintendent Michael Adams insists the policy is valid and educationally sound. “Repeatedly, we reached out to the family to address their concerns regarding school attendance, and these efforts have been rejected in favor of litigation,” said Adams. “We regularly provide accommodations to students with health issues in order to assist them in being successful in school.”

The family is asking the court to order the school district to promote the student to 11th grade.  In addition, the suit seeks an undisclosed amount of compensatory damages and legal fees.

The previous attendance policy stated that a student who was absent from a course more than 15 times in a school year would not earn credit unless documentation was provided to excuse the absence.  According to the student’s other attorney, Sarah Zuba, “The old policy allowed a student to go to summer school, but now it is automatic retention after 34 absences.” “At this rate he will never get out of 10th grade,” she added.

Source: Courier Post, 3/28/14, By Phil Dunn

[Editor's Note: In June 2013 Legal Clips summarized an Associated Press article in the San Francisco Chronicle reporting that several organizations had filed a complaint with the U.S. Department of Justice (DOJ) claiming that Dallas-area public schools are too harsh in their truancy rules, subjecting students to cruel and unusual punishment by handcuffing them in class, sending them to special adult courts, and assessing stiff fines for skipping school.  The complaint, filed by Texas Appleseed, Disability Rights of Texas, and the National Center for Youth Law with DOJ’s Civil Rights Division, charges that the Dallas Independent School District and the nearby districts in Garland, Mesquite, and Richardson are using “inconsistent and inflexible” attendance polices that violate the civil rights of students with disabilities and with limited English proficiency.]

ACLU charges that local New Hampshire board rules restricting member’s speech violate First Amendment

The New Hampshire Civil Liberties Union (NHCLU) is demanding that the Timberlane School Board (TSB) repeal two rules it recently adopted that limit the ability of board members to publicly comment on board matters, reports the Eagle-Tribune, contending both rules violate the First Amendment.  Rule 8 prohibits board members other than the chairman from speaking to members of the press.  Rule 7 requires board members to support all board decisions, regardless of how individual members voted.

In a letter to TSB Chairman Nancy Steenson and Superintendent Earl Metzler, NHCLU attorney Gilles Bissonnette stated, “There is no compelling governmental interest that could possibly justify such a substantial intrusion on First Amendment rights.”  In the NHCLU letter, Bissonnette argued that board members “should be (and are) able to speak their mind, especially through the media which enables political ideas to reach the largest number of constituents.”

Steenson has previously said the board has always operated under the understanding that only the chairman is allowed to speak to reporters and that the rules just formalized that decision, providing “a unified voice as a board.”

According to Bissonnette, NHCLU has not yet decided whether it will file suit if TSB fails to repeal the rules.

Source: Eagle-Tribune, 4/1/14, By Doug Ireland

[Editor's Note: In the NHCLU press release announcing the demand letter to TSB, it states that the problem with the rules "is that they ignore the bedrock principle that an elected official enjoys the same free speech rights as any other citizen.  Indeed, individuals do not surrender their free speech rights when they become elected officials, and the government may not impose greater speech restrictions on elected officials than it could impose on members of the general public."

In June 2010, Legal Clips summarized the decision by a U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel in Black v. Bethel Sch. Dist., holding that a school board member failed to state a valid claim for First Amendment retaliation based on his removal from the position of board vice president after he criticized the school district’s superintendent.  "To be sure," the court said, "the First Amendment protects Blair’s discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says."] 

ED orders Michigan district under Title IX to tear down baseball bleachers built by booster club

The Plymouth High School Baseball Boosters in Michigan are stunned by a United States Department of Education (ED) decision under its Title IX authority requiring them to immediately tear down fund-raised improvements to baseball bleachers, reports The Huffington Post.  The baseball booster club raised funds over six years to change the configuration of their bleachers because spectators had trouble seeing the playing field.   The money was raised from donors and the new bleachers were installed by volunteers.  ED ordered the school district to tear down the bleachers, however, because new bleachers were not also constructed at the adjacent women’s softball field.

Comparable fund-raising was not pursued by women’s softball boosters and there is no public money available for renovation of the softball bleachers.

Source: The Huffington Post, 3/31/2014, By Wendy Powell

[Editor's Note: In April 2013, Legal Clips reported on a suit filed by softball players and their parents against a New York school district claiming the softball players have been denied their rights under Title IX because the girls’ softball field is not comparable to Dwyer Stadium where the boys’ baseball team plays its games.

In October 2013, Legal Clips reported that the D.C. Public School System and ED entered into a settlement agreement to resolve a Title IX complaint.]

Colorado’s 2012 school disciplinary reforms ahead of national trend

According to the North Forty News, Colorado, with little public notice, enacted a law in 2012 mandating sweeping changes to the way school districts discipline students.  The purpose of the law was to move public schools away from criminalizing minor school discipline infractions, known as zero tolerance, that the law’s proponents said disproportionately affected students of color.

The U.S. Department of Education (ED) recently released a report that examined all 97,000 of the nation’s public schools and its 16,500 school districts, representing 49 million students, which showed that students of color are disproportionately affected by suspensions and zero-tolerance policies.  In January 2014, ED and the U.S. Department of Justice (DOJ) issued guidelines for school districts across the nation to move away from zero-tolerance polices, particularly those that might unintentionally promote unlawful racial discrimination in school discipline.  The press release accompanying the guidelines stated that the nationwide Civil Rights Data Collection has “demonstrated that students of certain racial or ethnic groups tend to be disciplined more than their peers.”

“Colorado definitely was ahead of the curve in eliminating the zero-tolerance policies,” said Kim Dvorchak, executive director and founder of the Colorado Juvenile Defender Coalition.  “All of the research told us that zero tolerance didn’t work,” said Chris Harms, director of the Colorado School Safety Resource Center which is a part of the Colorado Department of Public Safety. “Zero tolerance was so restrictive that even if a second grader brought a butter knife to school, the incident was treated the same as if an 11th grader had brought a butcher knife.  The 2012 bill directed schools to examine the consequences of minor occurrences — including possibly incarceration — and do everything possible to keep the student connected to school.”

One of the law’s major provisions requires school districts to incorporate disciplinary interventions that reduce the number of expulsions and referrals to law enforcement and to foster intervention approaches that minimize student exposure to the criminal justice system.  Other provisions require school districts to develop student disruptive behavior plans, establish diversion programs as an alternative to arrest or expulsion, eliminate mandatory expulsions for everything except students who bring guns to school, and mandate statewide training standards for school resource officers.

One School District’s Success

Two years after the enactment of the bill intended to eliminate the zero-tolerance school-to-prison pipeline, Poudre School District data shows that school expulsions and suspensions have gone down dramatically.  Todd Lambert, assistant superintendent of elementary schools in the Poudre School District, credited the school district’s dramatic decline in suspensions to several factors.

“There was a more pronounced focus on developing behavior plans for students.  This does not mean that student safety was sacrificed, nor does it mean that we weren’t developing plans already.  It simply means that school leaders, teachers, and parents were able to take a more comprehensive approach to issues associated with behavior.”

Lambert said that the district’s emphasis on curriculum quality also helped reduced the number of expulsions and suspensions.

“Our teachers and building leaders have always seen the connection between the engagement level of the student and his or her behavior,” said Lambert.  “We are also becoming more and more aware of how to provide our students with meaningful work and opportunities that increase their level of engagement.  In other words, one of the best discipline strategies is an engaging curriculum.  Our talented teachers understand this, and work to make this happen on a daily basis.”

Source: North Forty News, 3/23/14, By Doug Conarroe

[Editor's Note: In January 2014, Legal Clips published a Sua Sponte item reporting on release of the ED/DOJ guidance in the form of a "Dear Colleague Letter."  The press release announcing issuance of the guidance stated that it was intended to “help public elementary and secondary schools administer student discipline in a manner that does not discriminate on the basis of race.” 

In March 2014, Legal Clips summarized in an article in The Chronicle reporting that ED's Office for Civil Rights (OCR) had issued its first report in almost 15 years examining civil rights data from public schools nationwide, says The Chronicle.  The Civil Rights Data Collection (CRDC) from the 2011-12 school year compiled data from all 97,000 of the nation’s public schools and its 16,500 school districts – representing 49 million students. 

Also in January 2014, Legal Clips summarized an article in the Washington Post reporting that the Maryland State Board of Education (MBE) had approved far reaching changes to the state’s discipline policies to achieve the goal of a more constructive approach to student discipline that eliminates racial disparities in suspensions and keeps disciplined students in school.  The new regulations allow principals to suspend students but establish a more rehabilitative philosophy and reserve the harshest penalties for the most severe offenses.] 

Attorneys in California’s hotly contested tenure suit make closing arguments to court

Courthouse News Service reports that attorneys in the hot button suit, Vergara v. Californiaover whether California unconstitutionally rewards “grossly ineffective” teachers with permanent employment through tenure have made their closing arguments.  The suit was brought by a group of students alleging that the state’s education system violates the equal protection provision of the California Constitution.

The focus of the case is on state education laws that the students claim unfairly give teachers permanent employment, prevent removal of grossly ineffective teachers from classrooms, and during economic downturns require layoffs of teachers based on seniority rather than their ability to teach.  Under those laws, poor and minority schools end up with a disproportionate amount of “lemon” teachers, who secure tenure in as little as 16 months, according to the lawsuit.

The students are seeking to increase the probationary period for teachers to three years in order to bring the law in line with most states in the nation.

California and the teacher’s union defending the case argued that extending the probationary period would chip away at a benefit that that attracts quality teachers and protects them from the whims of officials and administrators. Teacher tenure originally was instituted because of the poor pay and work conditions teachers faced.

Attorney Theodore Boutrous Jr., representing the students, told the court there are “echoes” of the 1954 Brown vs. Board of Education ruling in Vergara because California’s education law is inflicting a “profound harm” on poor and minority students.  “There are grossly ineffective teachers teaching in the classroom right now,” Boutrous said, while “superstar” teachers are being laid off because of a last-in first-out statute.

Attorney Marcellus McRae, who is also representing the students,said that it could cost from $250,000 to $400,000 to dismiss a single teacher.  Because the process is so slow and expensive, fewer than 0.002 percent of teachers receive their walking papers, he  said.  In what he called a “Dance of Lemons,” McRae said a disproportionate amount of poorly performing or inexperienced teachers are sent to poor and minority districts in the state.

California Teacher’s Association attorney James Finberg argued that the student-plaintiffs based their evidence on subjective, anecdotal evidence from 20 of California’s 1,044 school districts.  “These statutes should not be struck down based on a handful of anecdotes,” he said.   Finberg also contended that the plaintiffs are attempting strike down the laws by citing the “bad management” of a few school districts, and urged the court not to discount that the laws have been applied constitutionally and effectively in most school districts.  California Deputy Attorney General Susan Carson echoed a similar theme,  suggesting during closing arguments that parents could use the electoral process to oust underperforming school boards or administrators.

Source: Courthouse News Service, 3/28/14, By Matt Reynolds

[Editor's Note: In March 2014, Legal Clips summarized an article in EdSource reporting that California’s education trial of the year, Vergara vs California, in which the plaintiffs argue that state tenure laws operate to deny poor, minority children their constitutionally guaranteed right to an equal opportunity for an education, would continue after the judge denied the defendants’ motion for judgment at the close of the plaintiffs’ case.  The judge rejected the state’s argument that, after presenting a month’s worth of evidence, the plaintiffs had failed to make their case.] 

New York district sued over injury occurring during dodgeball game

The Post Standard reports that the Jamesville-DeWitt school district is being sued by the parents of an elementary school student whose nose was broken during a game of dodgeball in gym class.  The suit raises again the question of whether dodgeball is an appropriate activity for students.

According to the suit, Yong Seong Cho was participating in a game of dodgeball organized by a substitute gym teacher in a gym with too many people and too many balls.   The suit claims there was no “safe zone” or place for students who didn’t want to play.

Cho was not hit by a rubber ball, but by another student afraid of being thrown at, the suit says.  The panicked classmate, who has autism, ran aimlessly around the small gym until his head crashed into Cho’s face.  The unintended head-butt resulted in a broken nose.   Cho’s father says the nose is tilted to one side and his nostrils are different shapes.  Doctors concluded his nose should not be straightened after he turns 18, leaving the nose deformed until then.

The parents are demanding the school district pay their son’s medical bills, which will end up costing more than $30,000.  They are also asking for compensation for their son’s pain and disfigurement in an amount up to $300,000.

The suit points out that the Society of Health and Physical Educators (SHPE) says dodgeball is not an appropriate activity for schools.  Although SHPE’s conclusion does not rest on any studies of dodgeball injuries, the organization believes the game sends the wrong message to children.  A 2006 pronouncement from SHPE said that “it is not appropriate to teach our children that you win by hurting others.”

Source: The Post-Standard, 3/20/14, By Douglass Dowty

[Editor's Note: In October 2006, Legal Clips summarized an Associated Press article in the Boston Globe reporting that school officials at the Willett Elementary School in Attleboro, Massachusetts have banned playground tag, touch football, and any other unsupervised chasing games because of the risk of injury and liability for the school.  The article also mention that Attleboro was one of several school districts nationally that banned dodgeball a few years back because it is an exclusionary and dangerous game.] 

U.S. Department of Education issues Civil Rights Data Collection report, first since 2000

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has issued its first report in almost 15 years examining civil rights data from public schools nationwide, says The Chronicle.  The Civil Rights Data Collection (CRDC) from the 2011-12 school year compiled data from all 97,000 of the nation’s public schools and its 16,500 school districts – representing 49 million students.

The report was unveiled jointly by ED Secretary Arne Duncan and U.S. Attorney General Eric Holder.  “This data collection shines a clear, unbiased light on places that are delivering on the promise of an equal education for every child and places where the largest gaps remain.  In all, it is clear that the United States has a great distance to go to meet our goal of providing opportunities for every student to succeed,” Duncan said.

Holder noted, “This critical report shows that racial disparities in school discipline policies are not only well-documented among older students, but actually begin during preschool.”  He added, “Every data point represents a life impacted and a future potentially diverted or derailed.  This Administration is moving aggressively to disrupt the school-to-prison pipeline in order to ensure that all of our young people have equal educational opportunities.”

The data released today reveal particular concern around discipline for our nation’s young men and boys of color, who are disproportionately affected by suspensions and zero-tolerance policies in schools.  Suspended students are less likely to graduate on time and more likely to be suspended again. They are also more likely to repeat a grade, drop out, and become involved in the juvenile justice system.  ED and the Department of Justice (DOJ) recently released guidelines to school districts on zero-tolerance policies and discipline tactics.

Some of the key findings include:

Access to preschool: About 40% of public school districts do not offer preschool, and where it is available, it is mostly part-day only.  Of the school districts that operate public preschool programs, barely half are available to all students within the district.

Suspension of preschool children: Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once.

Access to advanced courses: Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics).  However, less than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high school.  Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses.

Retention of English learners in high school:  English learners make up 5% of high school enrollment but 11% of high school students held back each year.

Source: The Chronicle, 3/23/14, By Staff

[Editor's Note: ED's press release announcing issuance of the survey states it is "the first comprehensive look at civil rights data from every public school in the country in nearly 15 years."  The release also points out: 

CRDC data helps inform policy and regulatory work by the federal government.  For example, the Departments of Education and Justice recently released guidelines to school districts on zero-tolerance policies and discipline tactics, a powerful example of the federal government using data to take action to bolster outcomes and reduce disparities for minority students.

State-, district- and school-level data may be viewed at the CRDC website at crdc.ed.gov.

In January 2014, Legal Clips summarized the ED/DOJ guidelines referred to in The Chronicle article above, which were issued in the form of a "Dear Colleague Letter" (DCL).  The DCL stated that the guidance is intended to “help public elementary and secondary schools administer student discipline in a manner that does not discriminate on the basis of race.” 

On March 24, 2014, Corey Mitchell of the Star Tribune reported that U.S. Rep. John Kline (R-MN), the chairman of the House Education Committee, had also weighed in on OCR's data collection report.  Specifically, he sent a letter to Duncan and Holder arguing that local educators, not the federal government, are best equipped to solve the problem of racial disparities in school discipline.  

The letter expresses concern that even when policies are applied fairly and equally to all students, OCR may conclude the actions are discriminatory and, thus, will have a "chilling effect" on teachers and school officials working to address discipline issues with students.]

Sua Sponte: A ruling on a gay-straight alliance club’s constitutional argument for school recognition

A Florida federal district court opinion provides interesting insight on the question of whether students have a First Amendment right to receive school sponsorship of their student clubs.

The Carver Middle School Gay-Straight Alliance Club (Club) requested official recognition as a student organization at Carver Middle School (CMS).  Carver Middle School is part of the Lake County School Board.  The school denied the Club’s application on the ground that it is not an extension of the school curriculum. The Club filed suit in federal district court against the school board asserting a violation of the Equal Access Act (EAA). The Club also filed a count that the school’s denial violates the Club’s First Amendment rights to free speech and free association.

The Club filed a motion for a preliminary injunction, seeking to compel the school to officially recognize the club until a decision on the merits of its claims.  The school board filed a motion to dismiss, arguing among other points that the complaint failed to state a claim under the EAA or the First Amendment.  The district court denied the school board’s motion to dismiss and the Club’s motion for a preliminary injunction.

The court’s ruling on the Club’s request for a preliminary injunction is interesting, particularly as it relates to the Club’s First Amendment claims. (The Club’s Equal Access Act claim, which would appear to be their lead argument for an injunction, was stymied because the Act applies only to “secondary schools” as defined under state law, and Florida law does not define that term.  The school board did recognize gay-straight alliance clubs at the high school level.)

But the Club had added a constitutional argument to the traditional EAA claim. It argued that the First Amendment’s free speech and free association clauses gave it the right to be recognized by the school.

The district court found the school’s rejection of the Club’s application “was necessarily a prior restraint predicated upon the content of the speech or associational rights intended to be exercised by the [Club] as expressed in its charter.”  The court noted, however, that prior restraint on First Amendment rights is not automatically a constitutional violation in every setting, “in particular, the management of nonpublic fora in public schools.”

The plaintiffs argued that the standard for student speech from Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), controlled the case.  The school board argued that the Hazelwood School District v. Kuhlmeier, 484 U. S. 260 (1988), school-sponsored speech standard should be applied.  The court sided with the school board, stating: “It appears, at this early stage of the case at least, that the School Board has the better of this argument. Hazelwood School District rather than Tinker supplies the governing standard.”

The court acknowledged an apparent inconsistency in the school board’s argument: the school denied the Club’s application because it was not an extension of the school’s curriculum, yet the school argues that Hazelwood controls the case.  The court concluded that “the terms curriculum or curricular have two distinct meanings in the context of this case.”  It pointed out that the term curriculum as used by the school board means its existing courses of study. On the other hand, it found the term “curricular activity” as used in Hazelwood “is a much broader term that encompasses any didactic activity sponsored or supervised by the school whether it is an ‘extension’ of an existing course of study or not.”

The school had approved applications for other student clubs that are not an extension of the school curriculum, a fact stressed by the plaintiffs.  The court said that that point is irrelevant to the legitimacy of the school’s rejection of the Club’s application.  The plaintiffs had raised First Amendment claims, not an Equal Protection Clause claim, “and the claim of the [Club] must stand or fall on its own merit under the Supreme Court’s school speech cases meaning, more particularly, Hazelwood School District.”

The court took judicial notice of the politically and socially charged nature of the debate on sexual orientation, and that at times it has turned violent.  “It seems entirely reasonable, therefore, that those in charge of a public middle school with students twelve to fourteen years of age would want to distance the school and its pupils from a debate best left to more mature educational levels.”  The court said the age and maturity of the students were “an appropriate if not a vital consideration” in the school’s decision.

Under the weight of the law, the court determined that it was unlikely that the Club would prevail on the merits, and denied its request for an injunction.

Carver Middle Sch. Gay Straight Alliance v. School Bd. of Lake Cnty. Fla., No. 13-623 (M.D. Fla. Mar. 6, 2014)

[Editor's Note: In February 2013, Legal Clips summarized an article in the Orlando Sentinel reporting that the Lake County School Board was considering adopting new rules that would restrict extracurricular student clubs in secondary schools, in response to this case.  During a school board workshop, most members said they want to limit extracurricular student groups in secondary schools.] 

Washington appellate court rules that records of teacher’s misconduct must be disclosed

Martin v. Riverside Sch. Dist. No. 416, No. 31178-3-III (Wash. App. Ct, Div. III Mar. 18, 2014)

Abstract: A Washington Court of Appeals three-judge panel has ruled unanimously that records regarding the investigation and termination of a teacher for misconduct are subject to public disclosure.  The panel rejected the teacher’s argument that disclosure was barred under the employee personal information exemption and the investigative records exemption of Washington’s Public Records Act (PRA).

Facts/Issues: In April 2012, a reporter for The Spokesman-Review submitted a request for public records to the Riverside School District (RSD) regarding Allen Martin, a former teacher.  RSD had terminated Martin for engaging in sexual intercourse in his classroom with a former student, who was an adult.

The reporter’s request sought “any information regarding teacher/coach Allen Martin including emails containing his first or last name, or both, within the last six months, administrative leave notification or letter, documentation regarding cause for termination, available investigative information about his actions, any memos containing his first or last name, or both and any termination documents.”  RSD informed Martin that it planned to honor the request unless he sought to enjoin the disclosure.

Martin filed suit in state court to prevent RSD from disclosing the records at issue, naming RSD and The Spokesman-Review’s parent company, Cowles Publishing Company, as defendants.  The trial court ordered disclosure of the documents.  While Martin’s appeal was pending, an arbitrator upheld RSD’s decision to terminate him.

Ruling/Rationale: The appellate panel affirmed the lower court decision.

Martin argued that disclosure was precluded by two provisions of the state’s public information law:

1.  RCW 42.56.230(3) exempts disclosure of “[p]ersonal information in files maintained for employees … of any public agency to the extent that disclosure would violate their right to privacy.”

2.  RCW 42.56.240(1) exempts from public inspection and copying specific investigative records compiled by investigative agencies, the nondisclosure of which is essential to the protection of any person’s right to privacy.

The key to the case was the requirement, under each provision, that disclosure would violate the individual’s right of privacy.  It is not enough that the record is a personnel record or an investigative record; nondisclosure must also be essential to protecting the individual’s right to privacy.

Washington’s public information act, section RCW 42.56.050, states that an individual’s right to privacy “is invaded or violated only if disclosure of information about the individual: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.”  Based on the conjunctive nature of the privacy test, the panel stressed that even when the information is offensive to the individual, it is still subject to disclosure “if there is a legitimate or reasonable public interest in the disclosure.”

Citing Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164 Wn.2d 199, 215, 189 P.3d 139 (2008), the court said that public employees do not have a right of privacy in misconduct that has been substantiated, but they do have a right of privacy in false or unsubstantiated allegations.  The allegations against Martin had been substantiated, and admitted to by Martin.  Martin argued that he had a legitimate privacy right in the records because the subject matter “concerned his private life and was not specific incidents of misconduct during the course of employment.”  The court rejected this argument, finding that his conduct did occur during his course of employment.  It was the reason he was terminated.

The court noted two aspects of legitimate public interest in this matter.  One, the conduct of a public school teacher.  Two, the school district’s investigation and handling of the matter.

Since both of the PRA provisions on which Martin relied required that nondisclosure was necessary to protect his right of privacy, and he had no such right, disclosure of the information was required.  Exemptions under the public information act are to be narrowly construed.

Martin v. Riverside Sch. Dist. No. 416, No. 31178-3-III (Wash. App. Ct, Div. III Mar. 18, 2014)

[Editor's Note: In October 2011, Legal Clips summarized a decision by the Iowa Court of Appeals in ACLUF-IA v. Records Custodian, Atlantic Cmty. Sch. Dist., No. 11-0095 (Iowa App. Ct. Oct. 19, 2011), holding that a school district was not required under the state’s open records act to disclose employee disciplinary records.  The appellate court concluded that the records fell within the personnel records exemption in the public information act.]

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