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DC Circuit holds school administrators were entitled to qualified immunity from former teacher’s First Amendment free speech retaliation suit

Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)

Abstract: A U.S. Court of Appeals for the District of Columbia Circuit three-judge panel has ruled that even assuming the portion of a teacher’s email to the chancellor of the District of Columbia Public Schools (DCPS) accusing his principal of falsifying the assessments of students was protected speech under the First Amendment’s Free Speech Clause, the individual school administrators named as defendants were entitled to qualified immunity from the teacher’s First Amendment retaliation suit. The panel assumed, without deciding, that the part of the email reporting that the principal had allegedly altered the students’ records was protected under the First Amendment.  However, the panel still concluded that the individual defendants were entitled to qualified immunity because it was not clearly established law at the time the teacher was terminated that such speech is protected.

Facts/Issues: Bruno Mpoy was employed by DCPS as a special education teacher at Ludlow Taylor Elementary School (LTES) on a probationary basis. Mpoy encountered a number of obstacles and problems throughout his assignment at LTES. He complained, without success, to Principal Donald Presswood about the unsanitary condition of his classroom and the lack of books and other necessary materials. He also found the performance of his teaching assistants wanting.

Presswood generally ignored Mpoy’s complaints, failed to take any corrective action, and accused Mpoy of creating the problems. According to Mpoy, Presswood instructed him to falsify the assessments of his special education students to make it appear that they had demonstrated acceptable progress. When Mpoy told Presswood that he would not do it, Presswood enlisted two other teachers “to falsify the records of Plaintiff’s special education students.”

Presswood subsequently issued two warning letters to Mpoy: one for excessive tardiness and failure to follow lesson plans; the other for failure to escort and monitor his students and failure to follow safety procedures. Mpoy also received a five-day suspension for failure “to follow instructions issued by your supervisor to conduct a classroom observation.” He then sent an email to then-Chancellor Michelle Rhee. The email described in detail Presswood’s actions and the various classroom problems that Mpoy had brought to Presswood’s attention but that the principal had failed to remedy. The five-page email included a one-sentence reference to Presswood’s alleged direction to falsify the records of Mpoy’s students.

At the end of the school year, Mpoy received a letter of non-renewal of his teaching contract and was terminated. Mpoy filed suit in federal district court against The New Teacher Project, DCPS, Presswood, and Rhee alleging that he was fired for “reporting the misconduct and inappropriate conditions he encountered” at LTES. The court granted The New Teacher Project’s motion to dismiss. It allowed the First Amendment retaliation claim to proceed, but only against Rhee and Presswood, and only in their personal capacities. Mpoy did not appeal that ruling.

After the retaliation claim went forward, Rhee, Presswood, and DCPS filed a motion for judgment on the pleadings, which the district court later granted. The court held that Mpoy’s speech was not protected by the First Amendment because it was made pursuant to his official duties rather than as a citizen on a matter of public concern. In the alternative, the court held that, even if the speech was protected, Presswood and Rhee were entitled to qualified immunity. Mpoy appealed this ruling.

Ruling/Rationale: The D.C. Circuit panel affirmed the lower court’s decision on the grounds of qualified immunity. Analyzing the issue of whether Mpoy had engaged in protected speech, the panel stated that under Garcetti v. Ceballos, 547 U.S. 410 (2006), courts utilize a two-part test:

The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.

The panel found that the focus of the appeal was whether Mpoy spoke as a citizen rather than an employee in his email. Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

According to the panel, the D.C. Circuit has interpreted “pursuant … to officials duties” in Winder v. Erste, 566 F.3d 209 (D.C. Cir. 2009), to mean that “a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.” It, therefore, found: “Under circuit law as described in Winder, however, that email is unprotected by the First Amendment because it ‘report[ed] conduct that interfere[d] with his job responsibilities.’” As a result, the panel concluded, based on Winder, that “Mpoy’s email constituted employee speech unprotected by the First Amendment.”

Nonetheless, the panel determined that its inquiry into whether email was entitled to First Amendment protection was not at an end, because the U.S. Supreme Court’s repeated use in Lane v. Franks, __ U.S. __, No. 13-483, 2014 WL 2765285 (June 19, 2014), of  “the adjective ‘ordinary’ — which the court repeated nine times — could signal a narrowing of the realm of employee speech left unprotected by Garcetti.” The panel posited that “it is possible that Winder’s broad language, interpreting Garcetti as leaving an employee unprotected when he reports conduct that ‘interferes with his job responsibilities,’ could be in tension with Lane’s holding that an employee’s speech is unprotected only when it is within the scope of the employee’s ‘ordinary job responsibilities.’”

However, the panel found it could leave that question for another day because Mpoy’s appeal could be resolved by determining if Presswood and Rhee were entitled to qualified immunity.  Pointing out that the “relevant question for qualified immunity purposes is whether the official could reasonably have believed, at the time he fired [the plaintiff], that a government employer could fire an employee on account of the speech in question.” It concluded that because no Supreme Court case at the time had “cast doubt” on the validity of Winder as precedent, the individual defendants were entitled to qualified immunity.

Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)

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

Also in June 2014, Legal Clips summarized an NPR story reporting on the U.S. Supreme Court’s decision in Lane v. Franks, which held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” However, the Court also found that Franks was entitled to qualified immunity from the suit.]

Fifth Circuit panel upholds University of Texas race-conscious admissions policy

Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)

Abstract: In a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled that the undergraduate admissions policy of the University of Texas at Austin (UT) does not violate the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit panel majority, following the U.S. Supreme Court’s instructions, subjected UT’s admissions policy to a rigorous “strict scrutiny” analysis. It concluded that to “deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It found that UT’s “holistic review”, in which race is considered as one of a number of factors, “is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.”

Facts/Issues:  Abigail Fisher, a white applicant, was denied admission to UT in 2008 under UT’s “holistic review” program.  Although race is not assigned a numerical value under UT’s holistic review program, UT is committed to increasing minority enrollment – a goal which it terms “critical mass.”

UT’s holistic review program was adopted after the Fifth Circuit invalidated a system based on a numerical score involving academic performance and race in Hopwood v. Texas, 78 F.3d 932 (1996).  After Hopwood, state lawmakers adopted the Top Ten Percent Law, which grants automatic admission to students in the top 10% of their high school class.  Together, these programs produced a more racially diverse student body at UT than had existed pre-Hopwood.

But after the Supreme Court’s Grutter decision upheld the use of race in holistic admissions plans, UT restored a racial component to its program. Race was added as a factor to UT’s “personal achievement index,” a mix of leadership qualities, extracurricular activities, work and service experience, and special circumstances.

That index, known as the PAI, and a separate academic index are used on a matrix to grant admission to applicants who do not get in through the Top Ten Percent law. Fisher sued UT and school officials in federal district court, alleging that UT’s consideration of race in admissions violated the Fourteenth Amendment’s Equal Protection Clause.  The district court granted summary judgment to UT.

Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to UT, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, Fifth Circuit upheld UT’s admissions plan.  Fisher appealed.

In a 7-1 decision, the U.S. Supreme Court vacated the Fifth Circuit’s decision upholding the constitutionality of UT’s admission policy, because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and . . . Bakke . . . .” It remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion.  Justice Kennedy wrote the majority opinion.

The majority noted that the line of cases upholding the use of race in university admissions, when it is narrowly tailored to the compelling government interest in the educational benefits that flow from a diverse student body, had not been challenged.  This “strict scrutiny” analysis requires a court to conduct an exacting analysis, which the Supreme Court found the Fifth Circuit had not done.  The Court directed the Fifth Circuit to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Ruling Rationale: On remand, the Fifth Circuit panel’s majority affirmed the district court’s grant of summary judgment to UT, rejecting Fisher’s claim that UT’s race-conscious admissions policy violated the Fourteenth Amendment. The majority, in accordance with the Supreme Court’s instructions, applied “more exacting scrutiny” to UT’s admissions efforts to achieve diversity.

Before addressing the issue of whether UT’s race consciousness admissions policy survived strict scrutiny, the majority disposed of UT’s contention that the Supreme Court’s decision required the Fifth Circuit to return the case to the district court for additional discovery based on the Supreme Court’s holding regarding scrutiny and deference. Given that there were no new issues of fact or need for additional discovery, it concluded that remand to the district court would result in a “duplication of effort.” The panel majority, therefore, denied UT’s motion for remand.

Commencing its strict scrutiny analysis, the panel majority repeated the Supreme Court’s warning that “[s]trict scrutiny must not be strict in theory, but fatal in fact, yet it must also not be strict in theory but feeble in fact.” It concluded, based on the data in the record, that the “holistic review” of “what little remains after over 80% of the class is admitted on class rank alone — does not, as claimed, function as an open gate to boost minority headcount for a racial quota.” Instead, the majority found: “Minorities being under-represented in holistic review admission relative to the impact of holistic review on the class as a whole holds true almost without exception for both blacks and Hispanics for every year from 1996 – 2008, ….”

In response to the plaintiff’s assertion that UT failed to seek race neutral alternatives in seeking the goal of diversity, the majority stated that “this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program — in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.” It found that the “holistic review” component of the admissions policy complements the “top Ten Percent” component’s contribution to the goal of diversity “by mitigating in an important way the effects of the single dimension process”, and “its limited use of race is narrowly tailored to this role ….”

The panel majority rejected Fisher’s argument that a race-conscious admissions policy was no longer necessary because UT had reached admission of a “critical mass” of minority students at the time she applied. Instead, it concluded that UT “demonstrated a permissible goal of achieving the educational benefits of diversity within that university’s distinct mission, not seeking a percentage of minority students that reaches some arbitrary size.” It stressed that Fisher’s argument failed to take into account that over 80% of UT’s students are admitted “without facial consideration of race as any part of narrow tailoring, and critically refuses to accept that the process adopted for the remaining 20% is essential.” The majority pointed out that the argument rested on the “untenable premise that a Grutter plan for 100% of the admissions is to be preferred.”

The panel majority rejected Fisher’s insistence that while the “holistic review” component “may be a necessary and ameliorating complement to the Top Ten Percent Plan,” UT has failed to show that the use of race as a factor is needed because “the Plan produces sufficient numbers of minorities for critical mass.”  The panel majority responded:

To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school — not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances — one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.

Dissent: The dissenting judge believed that the race-conscious “holistic review” component of the admissions policy was not narrowly tailored to achieve the goal of diversity. The judge argued that in the Supreme Court’s decision vacating the Fifth Circuit panel’s previous ruling, the Supreme Court had ordered the Fifth Circuit not to give any deference to UT’s claims that its use of race is narrowly tailored. He stated: “This deference is squarely at odds with the central lesson of Fisher.” He added, “A proper strict scrutiny analysis, affording the University ‘no deference’ on its narrow tailoring claims, compels the conclusion that the University’s race-conscious admissions process does not survive strict scrutiny.”

The dissenting judge agreed with Fisher that UT was required to seek other race-neutral options to achieve diversity, because as Justice Kennedy stated in his concurrence in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), the use of racial classifications is permissible only as a “last resort to achieve a compelling interest.” According to the judge, the panel majority entirely overlooks UT’s failure to define its “critical mass” objective for the purposes of assessing narrow tailoring. “This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”

The dissenting judge, therefore, concluded: “The exacting scrutiny required by the Supreme Court’s ‘broader equal protection jurisprudence’ is entirely absent from today’s opinion, which holds that the University has proven narrow tailoring even though it has failed to meaningfully articulate its diversity goals.” While conceding that the majority was correct that a “race-conscious admissions plan need not have a ‘dramatic or lopsided impact’ on minority enrollment numbers to survive strict scrutiny,” he stressed that UT could only “prove the necessity of its racial classification” by providing a meaningful explanation of “how a small, marginal increase in minority admissions is necessary to achieving its diversity goals.”

The dissenting judge found none of UT’s strict scrutiny arguments sufficient that the policy is narrowly tailored, because those arguments either overlook “a more narrowly tailored alternative” or fail to articulate how “this specific use of racial classification advances the University’s objective.” He said, “Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”

Like the majority, the dissent found the “review process captures the essence of the holistic diversity interest established in Bakke, validated in Grutter, and left intact by Fisher.” However, he found two flaws in UT’s claim that its own, internal, periodic review is sufficient to safeguard against any unconstitutional use of race:

First, strict scrutiny does not allow the judiciary to delegate wholesale to state actors the task of determining whether a race-conscious admissions policy continues to be necessary. Second, while the University correctly considers a range of factors in its assessment of the necessity of its use of race, it has still not explained to us how this consideration takes place.

Finally, the judge rejected UT’s assertion that its “holistic review” component was modeled on the admissions policy found constitutional in Grutter. He said, “Similarity to Grutter is not a narrow-tailoring talisman that insulates the University’s policy from strict scrutiny. The University’s burden is to prove that its own use of racial classifications is necessary and narrowly tailored for achieving its own diversity objectives.”

The dissent concluded that UT’s “holistic review” failed because UT was unable to articulate the connection between its diversity goal of “critical mass” and its race-conscious admissions process. He said, “The University’s failure to meet its strict scrutiny burden is a function of its undefined ends, not its choice to label those ends as ‘critical mass.’”

Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)

[Editor’s Note: In June 2013, Legal Clips summarized the U.S. Supreme Court’s 7-1 decision in Fisher, which vacated the Fifth Circuit’s decision upholding the constitutionality of UT’s admissions policy, and remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion. 

In November 2013, Legal Clips summarized an article in the Texas Tribune discussing the oral argument before the Fifth Circuit panel. Judge Emilio Garza, who wrote the dissenting opinion in the latest decision, presaged his criticism of the panel majority’s decision saying that “the definition of ‘critical mass’ that he heard during arguments was ‘tautological, circular or subjective.’”  Judge Garza observed that the application of strict scrutiny creates an interesting problem since, under the law, the goals for diversity cannot be defined by a specific number.]

New York teacher sues claiming harassment and discrimination based on sexual orientation

According to silive.com, a New York City speech therapy teacher has filed suit alleging he was subjected by supervisors to a hostile work environment in which he was mocked and insulted for his sexuality, and was then retaliated against when he filed a complaint. Jeffrey Giove, who is openly gay, is suing the city of New York, the city Department of Education, and his former supervisors at the Marsh Avenue Expeditionary Learning School — former principal Jessica Jenkins-Milona, current principal Cara DeAngelo and speech supervisor Judith Labarbera — for alleged harassment and discrimination on the basis of his sexual orientation.

The suit alleges that beginning in January 2009, a parent coordinator at the school, Suzanne Rolnick, began calling the plaintiff a “fat [gay slur],” and “joked about plaintiff’s sexual orientation openly and loudly in front of others.”  Rolnick, who is not named as one of the defendants in the suit, made these comments in front of students, teachers, and school administrators approximately once every two weeks, according to Giove’s suit. Her insults allegedly increased to approximately twice a week.

The harassment took place in front of Jenkins-Milona, and at times she laughed at it, the lawsuit claims. Giove finally complained to higher-ups around January 2013 when he addressed the issue with Jenkins-Milona. However, the remarks continued, the suit says. Jenkins-Milona was promoted from principal to superintendent of Staten Island public elementary and intermediate schools in September 2013. DeAngelo then became principal of Giove’s school. The suit claims that DeAngelo repeatedly witnessed Rolnick using the gay slur to address Giove, but did nothing about it.

In December 2013, Giove filed a complaint with the NYC Department of Education’s Office of Equal Opportunity regarding sexual orientation discrimination, and told Labarbera, his direct supervisor at the time. Shortly thereafter, Giove alleges that the defendants began retaliating against him for making the complaint, though he had a relatively clean professional record until then. “After plaintiff made this complaint …, he was subjected to approximately 10 disciplinary conferences with defendants DeAngelo and Labarbera and was formally written up approximately four times, all within the next four months,” the suit claims.

The suit also claims that after Giove declined an offered transfer, Labarbera told Giove in March 2014 that students would start being moved off his caseload, and she began observing his class for a short period of time.  Labarbera had never formally observed Giove teaching, according to the suit. In May 2014, Labarbera pulled him out of his classroom, gave him an “unsatisfactory” evaluation, and had him removed from the building, the suit said.  Giove claims he suffered severe anxiety and depression as a result of the harassment, and it interfered with his ability to perform his job.

Source:  silive.com, 7/18/14, By Mira Wassef

[Editor’s Note: In March 2012, Legal Clips summarized an article in the San Gabriel Valley Tribune, which reported that Mitch Stein, former coach of Charter Oak High School’s water polo team, filed suit against Charter Oak Unified School District charging that district officials terminated him because he is gay. Stein’s suit in Los Angeles Superior Court was seeking his reinstatement as a water polo coach and unspecified damages for lost wages, pain and suffering, and emotional distress.]

Florida district revises non-curricular student club policy after settling suit with religious student club

The Lake County School Board (LCSB) has voted to discontinue its practice of providing stipends to non-curricular high school student clubs on a district-wide basis, says the Daily Commercial. The board also voted to change the High School Student Clubs and Organizations Policy to grant non-curricular clubs the same access to school facilities as other student clubs.

LCSB’s action was prompted by a settlement in a suit brought by the Liberty Counsel on behalf of the Fellowship of Christian Athletes (FCA) at Mount Dora High School. The suit charged that the FCA had been refused access to school facilities granted to other student clubs, was not permitted to post announcements in the hallways and on the school’s marquee, and could not make announcements over the school’s public address system, club web page, or on the district’s website.

FCA students also wanted to wear a colored cord at graduation to signify club membership, have a club section in the school yearbook, and receive a stipend for the club’s faculty advisor. The settlement gave the FCA the same access to school facilities as other non-curricular student clubs. “We are trying to reach a point as conservative as possible to eliminate the ability to be sued over one of these topics,” said LCSB’s attorney, Steve Johnson.

The board’s revised policy now provides all clubs “the ability to place club announcements in the hallways and on the school’s marquee; to place flyers and posters in and outside of classrooms where clubs meet; the ability to present announcements over the school’s public address system; to maintain a club web page on the district’s website; the ability to wear colored cords at graduation to signify club membership; and free inclusion of the club in the year book.”

According to Johnson, the only issue pending is the stipend issue. He asked the board to decide whether all clubs should get a stipend to pay for faculty advisors. Superintendent Susan Moxley expressed concern with that idea. “If it is open across the board from a district standpoint, we have no way of managing supplements,” she said. “You could go from a number of clubs you budget to an infinite number of clubs.”

Source:  Daily Commercial, 7/22/14, By Livi Stanford

[Editor’s Note: In April 2014, Legal Clips summarized a story from News 13 reporting on FCA’s suit. The suit charged that FCA was being discriminated against by being excluded from announcements, the yearbook, and virtually every other school publication or website.]

Group of Louisiana legislators sue to block rollout of Common Core

The New Orleans Advocate reports that 17 members of the Louisiana state legislature have filed suit against State Board of Elementary and Secondary Education (LBESE) and Department of Education (LDE) seeking to halt implementation of the Common Core academic standards. Their suit charges that LBESE and LDE failed to follow the state’s Administrative Procedures Act (LAPA), which was a required step that would have allowed crucial public input.

State Superintendent of Education John White and Chas Roemer, President of LBESE, respond that the suit is misguided because education officials were not required to do what the legislators are claiming. “There is no legal basis for their claim whatsoever,” White said.

The suit, which was filed in the Louisiana 19th Judicial District Court, claims the issue is urgent because public schools start in a few weeks, and seeks a temporary injunction to block the rollout of Common Core.  At the same time, Gov. Bobby Jindal is mired in a dispute with LBESE and LDE over whether to scrap Common Core and the exams that go with it.

The suit focuses on the details of how LBESE adopted the standards in 2010. The legislators contend that the action violated the LAPA. White counters that state law requires LDE to establish content standards and for LBESE to approve them. LDE contends the law “says nothing about regulations or a required Administrative Procedures Act.”

Source:  The New Orleans Advocate, 7/22/14, By Will Sentell

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

Missouri district seeking social media communications of deceased student who committed suicide

According to a report on KMBC-TV9, the Carl Junction School District (CJSD), which is being sued in federal court by the Missouri parents of a student who committed suicide, is requesting all Facebook messages, photographs, videos, and other communications saved by the deceased student. Parents Jessica and Mika Nugent filed a wrongful death suit against the school district in state court that was removed to the federal district court.

The suit charges that CJSD failed to protect the student from bullying after he came out as bisexual, which led to him taking his own life. The school district’s discovery request includes all photographs, images, documents, videos, website pages, website links or files saved by the boy between Jan. 1, 2012 and May 15, 2013.

The parents’ attorneys are urging the court to deny the request, characterizing it as a “fishing expedition, plain and simple.” The attorneys have told the court: “Plaintiffs respectfully ask this court to sustain plaintiff’s objections, just as it would if defendants were seeking every paper document (the boy) and his family created, viewed or handled in a 15-month period.”

The suit alleges that the student was bullied and harassed with slurs, physical threats, and stealing or destroying of the boy’s personal property, starting in seventh grade and continuing into high school. “After coming out, (he) was the subject of ridicule, harassment, torment and bullying,” the legal complaint states. “This ridicule, harassment, torment and bullying took place both at school and on the school bus.”

The school district acknowledges that Jessica Nugent told one of the principals about possible misconduct on the bus and that information was relayed to others in the district. However, the district says its representatives are “without knowledge or information sufficient to admit or deny any other allegations” from the boy’s parents.

Source:  KMBC.com, 7/20/14, By Staff

[Editor’s Note:  In July 2014, Legal Clips summarized an article in the Claims Journal reporting that Bradley Lewis, the father of an Illinois high school student who committed suicide, had 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, was routinely subjected to peer bullying that involved both verbal and physical assaults by members of the football team.]

Indiana appellate court rules that district was not entitled to immunity from negligence suit for on-campus student-on-student shooting

Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014)

Abstract: An Indiana Court of Appeals three-judge panel has upheld the trial court’s ruling denying the school district’s motion for summary judgment. The panel concluded the district was not entitled to immunity from the suit under the Indiana Tort Claims Act (ITCA) because the actions alleged to form the basis of the negligence claims were not discretionary functions. It also rejected the school district’s contention that the plaintiffs had failed to allege sufficient facts to raise a material question of fact for the jury on the issue of breach of duty. Lastly, the panel rejected the district’s assertion that one of the plaintiff’s negligence claims was barred by the affirmative defense of contributory negligence as a matter of law. Instead, it found that the question of contributory negligence was best left to a jury to decide.

Facts/Issues: During his four years at Martinsville West Middle School (MWMS) Michael Phelps accumulated 50 discipline referrals, seven of which involved harassing, threatening, and physically assaulting other students. After threatening to blow up the school, Phelps was suspended from school and banned from being on school grounds except to take an annual standardized test. MWMS Principal Suzie Lipps also initiated expulsion proceedings against Phelps. However, before Phelps was expelled, and about a week before the shooting, his mother withdrew him from school.

Phelps and C.J. had a number of verbal altercations, one of which was overheard by a teacher. C.J.’s girlfriend, A.M., claimed that she told two MWMS teachers that Phelps had threatened C.J., but the teachers did not report Phelps’ threats to the school administration. She also said that Phelps’ girlfriend, N.A., told her that Phelps had again threatened C.J. On the morning of the shooting, Phelps managed to avoid detection from the school surveillance cameras and entered MWMS. None of the school employees monitoring the entrances recognized him.

Shortly before Phelps approached C.J., N.A. warned C.J. that Phelps was on campus and planned to “kick [C.J.’s] ass.” C.J.’s mother told him via text message to go to the school’s office. However, C.J. remained in the school’s vestibule because he wanted to show Phelps that he was not afraid of him and because he didn’t believe that Phelps would actually assault him. Another MWMS student, B.K., and two other students also remained in the vestibule with C.J. Phelps then entered the vestibule and shot C.J twice in the stomach. The ejected shell casings from the bullets hit B.K., injuring his hand.

The State subsequently charged Phelps with attempted murder, aggravated battery, carrying a handgun without a license on school property, trespassing on school property, possession of a firearm on school property, and theft. The State later dismissed all counts except for the attempted murder count. The juvenile court waived jurisdiction and, following a bench trial, Phelps was found guilty of attempted murder. He was sentenced to thirty-five years executed in the Department of Correction, with five years suspended and five years of probation.

Following Phelps’ conviction, C.J. and his mother filed suit against the Metropolitan School District of Martinsville (MSDM) claiming the district had negligently failed to protect C.J. from Phelps. Specifically, C.J. argued that the School District was negligent when it left Door 2 unlocked, allowing Phelps to enter the school; when it failed to warn personnel monitors that Phelps posed a threat and to instruct them to specifically look for Phelps on school grounds after he was suspended; and when it failed to instruct personnel monitors to call 911 if Phelps was spotted on school property.

B.K. and his mother subsequently filed a similar lawsuit. The trial court consolidated C.J. and B.K.’s complaints. MSDM filed a motion for summary judgment, arguing that it was immune from liability pursuant to the ITCA, that C.J. was contributorily negligent, and that it did not breach its duty to protect C.J. and B.K. The trial court denied MSDM’s motion.  MSDM appealed.

Ruling/Rationale: Indiana Court of Appeals panel affirmed the trial court’s decision. The appellate panel began by analyzing MSDM’s argument that it was entitled to immunity under the ITCA because “the challenged actions involve the performance of a discretionary function.” It noted that at one time, Indiana courts “distinguished between ministerial and discretionary acts in order to determine if certain conduct is included within the immunity exception,” but the Indiana Supreme Court’s decision in Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988), rejected the ministerial/discretionary distinction analysis. Instead, the supreme court “concluded unless they can be properly characterized as policy decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities, discretionary judgments are not immune from legal challenge under the ITCA.”

The planning/operational test defines planning activities as those that “include acts or omissions in the exercise of a legislative, judicial, executive or planning function which involves formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy” as well as “[g]overnment decisions about policy formation which involve assessment of competing priorities and a weighing of budgetary considerations or the allocation of scarce resources are also planning activities.” According to the appellate court: “Under Peavler, then, the discretionary function exception of the ITCA insulates from liability only planning activity, characterized as only those significant policy and political decisions which cannot be assessed by customary tort standards and as the exercise of political power which is held accountable only to the Constitution or the political process.”

The Court of Appeals rejected MSDM’s contention that decisions made by MWMS’ principal with respect to the school’s safety plan are “quintessential discretionary functions.” It also found unconvincing the cases from other jurisdictions cited by MSDM that concluded a school’s safety and security decisions are discretionary functions which are immune from liability.

The appellate court first pointed out that the plaintiffs were claiming the injuries injury resulted from “negligent implementation of the plan,” rather than negligent formulation of the plan. It emphasized that “under the Peavler planning-operational test, decisions involving formulation of basic policy are entitled to immunity while decisions regarding only execution or implementation of that policy are not.” In addition, the Court of Appeals noted that “even if C.J. did allege negligent formulation of the safety plan, MWMS’s safety plan was not created in a way that would entitle the School District to immunity.”

While acknowledging MWMS’ principal has authority to create regulations governing student conduct, the principal “is not a public official, and her role is not that of policymaker.” It pointed out that “Indiana Code Article 20 indicates that a school principal’s role is mostly administrative, while the responsibility for creating policy lies with the school board.” It also cited Harless by Harless v. Darr, 937 F. Supp. 1339, 1349 (S.D. Ind. 1996), which held that “the school board and not the Principal . . . has final policy making authority under Indiana law.”

The Court of Appeals concluded: “Under our reading of Indiana case law, Indiana statutes, and the evidence before us, Principal Lipps’s safety plan does not entitle the School District to discretionary function immunity under the Indiana Tort Claims Act and the Peavler planning/operation test.”

The appellate court next turned to MSDM’s argument that MWMS officials “exercised reasonable care for the protection of its students and that it was not foreseeable to the School that [Phelps] would trespass onto school property the morning” of the incident and shoot C.J. It stated: “It is well settled that summary judgment is especially inappropriate where the critical question for resolution is whether a defendant exercised the requisite degree of care under the factual circumstances.” Based on the record, the Court of Appeals concluded “that there exist genuine issues of material fact on this issue and that the School District has not proved as a matter of law that the shooting was not foreseeable.”

In regard to the implementation of the safety plan, the Court of Appeals found that because there is “the unresolved question of whether the shooting was foreseeable, it follows that there remains this question: if the School District knew or should have known that Phelps posed a threat to C.J.’s safety, should it have taken more steps to protect C.J. from Phelps?” It concluded that “reasonable persons could differ as to whether there is a sufficient relationship between the School District’s general duty to supervise and protect its students and its alleged failure to take adequate measures to protect C.J. from Phelps.” As a result, the appellate court found that the issue of whether there was a breach of duty on the part of MWMS officials was best left to a jury.

Finally, the Court of Appeals tackled the issue of whether C.J.’s alleged contributory negligence barred his suit against MSDM. While acknowledging that the state legislature had adopted a comparative negligence scheme, which eliminated the contributory negligence defense as an absolute bar, it pointed out that the legislature had specifically provided that the new comparative fault scheme would not apply to governmental entities. As a result, a government could still assert contributory negligence as an absolute bar to recovery in a negligence suit.

However, the Court of Appeals pointed out that in order for the defense to succeed at the pretrial stage, “the evidence would have had to overwhelmingly establish, and without grounds upon which reasonable men may disagree, that C.J. was able to realize and appreciate the danger with which he was confronted.” The appellate court, as it had with the breach of duty issue, found the question of contributory negligence was one a jury should resolve because MSDM was arguing Phelps’ shooting of C.J. was unforeseeable to it, while at the same time asserting that C.J. should have foreseen that he would be vulnerable to a shooting when he decided to remain in the vestibule in which Phelps confronted C.J.

Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014)

[Editor’s Note: COSA member Thomas E. Wheeler II of Frost Brown Todd LLC , Indianapolis, IN, argued the case on behalf of MSDM.

In May 2014, Legal Clips summarized a decision of an Illinois Court of Appeals in Malinski v. Grayslake Cmty. High Sch. Dist., which held that a school district was entitled to immunity under the state’s Tort Immunity Act (TIA) from a lawsuit alleging that the district failed to provide a safe environment from peer bullying. Under the TIA, school districts are immune from damages caused by an employee’s discretionary–as opposed to ministerial–acts.  The court, applying Illinois precedent, rejected the student’s contention that the school’s application of a bullying policy in a specific circumstance is ministerial in nature.  It concluded instead that the manner in which school officials respond to a bullying incident is discretionary and the school district is shielded from liability under the TIA, unless the bullying policy mandates a particular response.]

Maine Human Rights Commission finds district discriminated against student subjected to peer bullying based on perceived sexual orientation

The Bangor Daily News reports that the Maine Human Rights Commission (MHRC) found reasonable grounds to determine that the Brunswick School Department (BSD) discriminated against a former junior high school student who was bullied by other students for more than two years because of his perceived sexual orientation. According to Courtney Beers, the student’s attorney, the family plans to participate in a mediation process, but is reserving the decision to file a lawsuit.

MHRC voted 3-2 to uphold a report by Commission investigator Victoria Ternig that found BSD had discriminated against the  student who was harassed and bullied from August 2010 to August 2012. The investigative report stated that BSD “allowed a hostile education environment to persist for a lengthy period of time,” and that the student was discriminated against on the basis of his “perceived sexual orientation and sex.” According to Ternig, the student continued to be abused despite the school’s efforts to stop and prevent it.

Beers said the student was subjected to “the most horrific offenses included physical assaults, sexual touching, and sexual assaults.” She added, “Ultimately, the minor was hospitalized and diagnosed with depression and post-traumatic stress disorder as a direct result of the bullying and harassment.” 

BSD Superintendent of Schools Paul Perzanoski insisted that administrators at Brunswick Junior High School took the complaints seriously and acted quickly. He pointed out the school created a response plan, but the student failed to follow the plan.

Local law enforcement investigated allegations that the student had been sexually assaulted by other students and forwarded its findings to the Cumberland County District Attorney’s office. The district attorney declined to pursue charges.

Stephanie Galeucia, who coordinates the responses to bullying for the Maine Department of Education, said that she could not recall whether the Department had been notified of this particular instance of bullying, but she said schools were not required to report instances of bullying until this year.

Source:  The Bangor Daily News, 7/15/14, By Beth Brogan

[Editor’s Note: In February 2014, Legal Clips summarized a decision by the Maine Supreme Judicial Court in Doe v. Regional Sch. Unit 26, which held that a school district violated a transgender student’s rights under the Maine Human Rights Act when it prohibited her from using the girls’ communal restroom at school.

In May 2014, Legal Clips summarized an article in Education Week, which reported on updated Title IX guidance recently released by the U.S. Department of Education that clarified that the civil rights laws’ protection extends to all students, regardless of sexual orientation or gender identity.]

Florida teachers union sues challenging process for passage of law expanding school vouchers

The Orlando Sentinel reports that the Florida Education Association (FEA) has filed suit in state court on behalf of Tom Faasse, a Lee County high school social studies teacher challenging the state’s recently enacted Career and Professional Education Act, which contains a provision expanding Florida’s private school voucher program by creating personal-learning accounts for disabled students.  The suit, filed in Leon County Circuit Court, charges that the law violates the state constitution’s single-subject requirement for bills.

In particular, FEA singles out the voucher language which expands the pool of families who could qualify for the corporate tax “scholarship” to attend private schools. FEA lawyer Ron Meyer said, “Somebody needs to stop and take a minute and say ‘what you did was wrong.'”  However, incoming state Senate President Andy Gardiner, who supported the law, responded that the legislation was “only the beginning” of his efforts to provide more resources to students with disabilities. “The teacher’s union may have given up on these children, but I have not,” he said.

Source:  Orlando Sentinel, 7/16/14, By Aaron Deslatte

[Editor’s Note: In June 2014, Legal Clips summarized an Associated Press article in the Pensacola News Journal, which reported that Governor Rick Scott had signed a bill into law that significantly expanded Florida’s private school voucher program. The governor’s action came in the face of protests from parent groups and the state’s teachers union who argue that expansion will come at the expense of traditional public schools.] 

Federal court rejects suit by advocacy group challenging Florida district’s materials distribution policy

A U.S. District Court in Florida has dismissed a suit brought by the Freedom From Religion Foundation (FFRF) against the Orange County School Board (OCSB) charging  the board barred FFRF from distributing materials in the district’s schools  criticizing various religions, says Courthouse News Service. The suit alleged a group called the World Changers of Florida (WCF) had been allowed to distribute copies of the Bible, the plaintiffs said their treatment amounted to a violation of the First and Fourteenth  Amendments.

OCSB allowed WCF to engage in “passive” distribution of Bibles after WCF had settled a suit against  the Collier County School Board over Bible distribution in that county’s public schools. OCSB cited the “Collier County Consent Decree” n declining to approve various materials that FFRF had submitted. FFRF’s suit characterized OCSB’s decision as “illegally discriminat[ing] against the viewpoints contained in those materials.”

After FFRF’s suit was filed, OCSB in January 2014 approved the previously barred materials for distribution saying FFRF could  distribute all its previously submitted materials at the same time and in the same manner as other groups. OCSB also told the plaintiffs that it “has no intention in the future to prohibit these materials.”

Because OCSB had relented on its alleged constitutionally impermissible decision, the federal district court concluded it no longer had jurisdiction to decide the matter because FFRF’s claimed violation was not moot. The court said, “In this case, the circumstances are sufficiently clear that the alleged wrongful behavior – defendant’s initial prohibition of a subset of materials that Plaintiffs sought to distribute – will not recur in the future.”

Source: Courthouse News Service, 7/14/14, By Chris Fry

[Editor’s Note: Passive distribution involves allowing students to choose whether to take materials that are presented on tables, usually at a school-wide event. The district court’s opinion in FFRF v. OCSB concluded that federal legal precedent supported a dismissal of the suit on the ground of mootness.

In April 2012, Legal Clips summarized an article in the Tulsa World reporting that Owasso Kids for Christ (OKC), a Christian club that meets before classes at Northeast Elementary School, had dropped its federal lawsuit against Owasso Public Schools (OPS). The lawsuit, filed by the Alliance Defense Fund (ADF) on behalf of OKC, charged that the school district’s materials distribution policy violated OKC’s constitutional rights because it discriminated against the club solely on the basis of its religious viewpoint.

At the time the lawsuit was filed, the existing OPS policy stated, “no literature will be distributed that contains primarily religious, objectionable, or political overtones which may be beneficial to any particular group or business at the expense of others.” Superintendent Clark Ogilvie said: “We’ve passed a new policy, and everyone’s in agreement. In a nutshell, we’re not going to be handing out a lot of flyers, and we’re going to treat all outside organizations the same.” ]

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