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Suit filed against West Virginia school district and sheriff’s office for arrest of disabled student

Betsy Frame, the mother of B.D., a female student at Riverside High School (RHS), has filed suit against a vice principal and a deputy sheriff assigned to the school, says the West Virginia Record, alleging the two falsely imprisoned and arrested the special education student.  B.D. suffers from epilepsy, Asperger’s Syndrome, attention deficit, social anxiety, and seizure disorders.

Frame’s suit alleges that Vice Principal Andrew Johnson and Deputy Sheriff Richard Lane, assigned to RHS as a prevention resource officer, illegally detained and arrested B.D. when they incorrectly identified her behavior coming out of a seizure-induced sleep as aggressive.  At the time, B.D. had an individualized education plan (IEP) from the school district based on her multiple disabilities.

According to the suit, the IEP notes that B.D.’s Asperger’s Syndrome caused her to be “selectively mute – rarely speaking to anyone regardless of the interaction.”  The IEP also stated that her epilepsy caused B.D. to sometimes go into a “sleeping seizure” whereby she would appear asleep and, upon awakening “appear to be dazed, confused and disoriented.”

The suit charges that on Nov. 18, 2011 B.D. suffered a sleeping seizure in class.  Johnson was summoned to the classroom when the teacher was unable to get a response from her.  Fifteen minutes later Johnson arrived in the classroom with Lane.  Instead of inquiring about her medical status, the suit claims they gave B.D. “multiple warnings to awaken and come down to the office.”

The suit says that when Johnson was unable to get a response from B.D. after tapping her on the shoulder at least once, “Lane then issued several other verbal commands for B.D. to sit up and then proceeded to tap her on the shoulder,” the suit says.  When that proved unsuccessful, the suit states Lane “placed his hand on her elbow and further asked her to go to the office.”  The suit claims that Lane’s actions caused B.D. to be awakened from her seizure whereupon she smacked Lane’s arm.  As a result, Lane allegedly first “placed his hand under her right bicep and jerked her completely out of her chair,” then placed her under arrest “by throwing her to the ground, face down and forcibly placing her hands in cuffs behind her back.”

According to the suit, Lane placed B.D. in his cruiser, binding her legs with zip ties before transporting her to Kanawha Magistrate Court where he charged her with battery on a police officer, obstructing and disturbance of schools. The charges were later dismissed on an unspecified date, but B.D. was subsequently suspended from RHS.

In addition to the claims against Johnson and Lane for civil rights violations under the U.S. and state constitutions, Frame has brought tort claims for battery, false imprisonment and intentional/negligent infliction of emotional distress.  She also named the Board of Education and the Kanawha County Sheriff‘s Department as co-defendants in the suit.  In her suit, Frame seeks unspecified damages, attorneys fees and court costs.

Source: West Virginia Record, 9/19/13, By Lawrence Smith

[Editor's Note: In March 2012, Legal Clips summarized an article in Education Week report that the U.S. Department of Education had collected data showing that, nationwide, school employees use isolation (seclusion) and restraint techniques disproportionately on disabled students, especially disabled African-American disabled students.]

Suit alleges Baltimore City school district is violating McKinney-Vento Homeless Act

The Public Justice Center (PJC) has filed suit in federal court on behalf of three homeless families, reports The Baltimore Sun, alleging that the Baltimore City Public School System is violating homeless students’ rights under the McKinney-Vento Homeless Education Assistance Improvements Act of 2001 (MVHEAIA).  The suit charges that homeless students have been denied transportation and have been stigmatized because they cannot afford school uniforms or field trip fees.

PJC is seeking an injunction to end the district’s policies and practices that allegedly harm homeless families.  “These barriers are symptomatic of larger failures when it comes to identifying and serving these kids, and ensuring that they have the same opportunity to succeed as housed kids, which is what the law requires,” said Monisha Cherayil, an attorney with PJC’s Education Stability Project.

The Baltimore City school district declined to comment on the suit. However, district officials said that in recent years the district “has increased its focus on and strengthened the services provided to homeless students.”

The Public Justice Center has filed similar lawsuits against neighboring Prince George’s, Baltimore, and Montgomery counties, prompting those districts to improve accommodations for homeless students.

The suit contends that the district violated its responsibility under MVHEAIA to ensure that “each homeless youth has equal access to the same free, appropriate public education … as provided to other children and youths.”  One allegation is that the school system is not providing transportation as required under MVHEAIA.  Another complaint is that the district’s uniform policy violates the law’s provision requiring school districts to review and revise “practices or policies that may act as a barrier to the enrollment, attendance, or success in school of homeless children and youth.”

The most recent data available reports that 2,837 homeless students were enrolled in Baltimore City schools in the 2012-13 school year, representing a 20%  increase from 2011-12.

In spring 2013, the Baltimore City school system passed its first comprehensive policy accommodating homeless students, who are defined as children who lack a fixed, regular or adequate nighttime place of residence. School officials believe the policy will bring the system in compliance with the law.  “To our credit … we have many of the services that are required through McKinney Vento already being provided at schools,” said Lara Ohanian, director of enrollment, choice and transfers for the school system.  “It’s just a matter of making sure that connection is made at all times.”

Source: The Baltimore Sun9/24/13, by Erica L. Green

[Editor's Note: PJC's press release anouncing the suit states:

"[T]hree homeless families filed a class action lawsuit … against the Baltimore City Public Schools for failing to provide transportation, school uniforms, and fee waivers for homeless students.  Under the McKinney-Vento Homelessness Education Assistance Improvements Act, schools are required to provide these services to homeless students to ensure that their education continues even when their housing is disrupted.”

In February 2008, Legal Clips summarized an article in the Honolulu Star-Bulletin reporting that a federal court sided with three homeless families who sued the State of Hawaii for allegedly failing to provide them an adequate education as required under MVHEAIA.]

ACLU drops suit after Indiana district allows girl on middle school football team

The Pharos-Tribune reports that the American Civil Liberties Union of Indiana (ACLU-IN) has dropped its suit against the Eastern Pulaski Community School Corp. (EPCSC) after the school district agreed to allow a female student to play on the all male middle school football team.  The agreement came about following a meeting between EPCSC Superintendent Dan Foster and the student’s parents to resolve the dispute.  The girl will be able to play in a game after 10 practices.  She has had about three or four practices, Foster said.

ACLU-In contends that before filing suit, the girl’s father asked the athletic director if she could try out for the team, but was told participation was limited to male students.  Foster claims he was not consulted prior to the suit being filed and that the matter could have been resolved without resort to a lawsuit.

Source: Pharos-Tribune, 9/21/13, By Amie Sites

[Editor's Note: In September 2013, Legal Clips summarized a news story from WLFI reporting on the suit filed by the American Civil Liberties Union of Indiana on behalf of the girl in federal court.]

New Jersey bans taunting, profanity, biased trash talk during athletic competitions

Reuters reports in the Chicago Tribune that New Jersey has adopted new rules for high school athletes that require game officials to eject players for using taunts, profanity, or biased language.  The rules are part of an anti-bullying initiative that athletic officials believe could serve as a model for other states.

Since the state implemented the rules in September, according to Larry White, an assistant director at the New Jersey State Interscholastic Athletic Association, 20 students have been disqualified from play, one for using a racial slur.  Under the new rules, referees are required to enforce a list of banned words.  They are also required to report an athlete to the state governing body of high school sports should his or her language cross the line from competitive banter to profanity.

A player’s use of expletives will result in ejection from the game.  Use of sexist, homophobic, or racial epithets will result in ejection, and also could be referred to the state attorney general’s civil rights office for additional action. “Biased language is not, and will not be, tolerated in the classroom,” said White.  “Interscholastic sports is an extension of the classroom and thus that language must not be tolerated on the fields, on the courts, on the mats, on the rinks, wherever high school sports are played.”

Theresia Wynns, the director of sports and officials education at the National Federation of State High School Associations, believes New Jersey’s tough new enforcement could serve as a model.  California’s Interscholastic Federation said it is “constantly adding new by-laws so a similar ban could very well be brought into play.”  Officials in New York and Florida are also considering bans on inappropriate trash talking.

Source: Chicago Tribune, 9/23/13, By Reuters

[Editor's Note: In the June 2013 press release announcing the new "sportsmanship standards," the New Jersey State Interscholastic Athletic Association (NJSIAA) said," The days of taunting, baiting and trash-talking during high school sporting events are over, thanks to teamwork between the New Jersey State Interscholastic Athletic Association (NJSIAA) and the office of the Attorney General of New Jersey and its New Jersey Division on Civil Rights."  The release also states that the "rule changes follow New Jersey’s Anti-Bullying Bill of Rights Act in addressing issues of harassment, intimidation, and bullying in the state’s public schools, including incidents occurring at school-sponsored events, such as high school athletic events."

In February 2013, Legal Clips summarized an article in The Record reporting that a task force examining the impact of New Jersey’s 2011 anti-bullying law concluded that it has been helpful overall, but that administrators should have more discretion in deciding when to launch full-scale inquiries into allegations of harassment.  The task force reported that too many incidents were being investigated as harassment, intimidation, and bullying, which drained excessive time from administrators, and sometimes delayed sanctions of students who had behaved poorly but did not break anti-bullying rules.]

Field trip in which students role-played slavery leads to complaint with Connecticut Dept of Ed

The parent of an African-American middle school student has filed a complaint with the Connecticut Department of Education (CDE) after his child was forced to reenact conditions of slavery, such as being sold at auction and picking cotton, while on a field trip.  James Baker, whose daughter attends Hartford Magnet Trinity College Academy, read her written statement to the school board.   She said:  “I had to hold my head down and could not make contact with the white masters.  I heard the instructor ask kids behind me to open their mouths so their teeth could be checked.  Some were asked to jump up and down.”

The student charges that she and her classmates were traumatized and subjected to racial epithets during the November 2012 field trip to the Nature’s Classroom, an environmental-based outdoor education program in Charlton, Mass.  She also claims that in addition to the auction and cotton picking, the students re-enacted the Underground Railroad and simulated being on slave ships.  According to the student, Instructors at Nature’s Classroom acted as overseers, telling students that while on the ship they would be forced to go to the bathroom on each other and would be thrown overboard if they got sick.

Jon Santos, the director of Nature’s Classroom, defended the role playing, saying it is an empathy-building activity that helps teach students about slavery, and also has lessons about modern issues such as bullying.  He emphasized that the use of racial epithets is not approved as part of the exercise.

David Medina, spokesman for the Hartford school district, declined to comment on a pending case before the commission.  A CDE report states that program officials failed to adequately brief parents about the simulation and that the program lacked key components, such as a statement of clear objectives and instructions to staff, and a way to gauge students’ emotional ability to handle the content.  “Playing the role of an oppressed person or oppressor can be traumatic and reinforce negative stereotypes,” the report said.

Santos said he never received a complaint at the time of the field trip and would have fired anyone who used the racial slur.  He said the program is being changed and will include clearly defined goals and objectives.  He also stressed that it is one of dozens of activities offered to schools, which volunteer to participate.  “There are real feelings that we are eliciting,” he said. “Is it appropriate?  That’s up for debate.  I wouldn’t deny that.  This isn’t pushed upon anyone.  A person could opt out.”

Source: The Day, 9/21/13, By Pat Eaton-Robb (AP)

[Editor's Note: In September 2010, Legal Clips summarized an article in the Boston Globe reporting that the parent of Wellesley, Massachusetts student, whose sixth grade class visited a Boston area mosque and participated in an Islamic prayer service, charged that school officials violated the students’ constitutional rights by taking them to any house of worship.] 

Iowa district enters into agreement with OCR to address racial disparities in special ed programs

The Iowa City Community School District (ICCSD) has entered into a voluntary agreement with the U.S. Department of Education’s (ED) Office of Civil Rights (OCR), says the Iowa City Press-Citizen, to address the disproportionate number of African-American students in the district identified as special education students.  The agreement is the result of a 2010 OCR investigation that found that minority students are over-represented in special education programs.

During the 2012-13 school year African-American students made up 17% of ICCSD’s enrollment, but 29% of special education students.  The disparity was even more pronounced during the 2009-2010 school year when African American students made up 16% of district enrollment, but 35% of those referred for initial special education evaluation.

The agreement requires ICCSD to hire a consultant, review its screening procedures, train teachers about the issue, and review whether current special education students ought to be there.  The agreement will remain in place until OCR determines the school district is in compliance with the law.

In a letter to ICCSD Superintendent Steve Murley detailing the investigation, OCR officials said that the process the district has used to intervene and help students before referring them to special education classes wasn’t clear enough.  Officials said school districts violate the law when their policies have a “disproportionate and unjustified effect on students of a particular race,” even if the policy is neutral and “administered neutrally.”

Source: Iowa City Press-Citizen, 9/20/13, by Adam B. Sullivan

[Editor's Note: In ED's press release announcing the agreement, assistant secretary for OCR Catherine E. Lhamon said, "Inappropriately placing students of color in special education programs can have adverse long-term educational consequences for these students.”  She continued, “We appreciate the district’s commitment to working with OCR to address this important civil rights issue.”  The release also details the terms of the agreement.

In September 2011, Legal Clips summarized an article in the Examiner reporting that although black students make up just 10.8% of the San Francisco Unified School District’s population, 22.8% of special education students and 47% of “emotionally disturbed” students are African-American.  Higher than expected numbers of African-American students also show up among those with learning disabilities, along with Hispanic students, who also cluster in the “speech and language impairment” category.] 

Maryland district adopts new student discipline policy aimed at reducing suspensions

The Prince George’s County Public School System has adopted a new student discipline policy, reports The Washington Post, that seeks to reduce the number of students suspended.  The policy reduces the number of offenses that include suspension as a punishment, and places a maximum number of days a student can be kept out of class for a specific offense.

The policy imposes a 3 day limit on the number of days a student may be suspended for a “soft offense,” such as disrespect, insubordination or class disruption.  The previous policy did not spell out a maximum penalty and instead left it to the discretion of each school administrator.

According to Daryl Williams, the district’s chief of student services, “Schools could administer any level of discipline they wanted.”  Williams added that the definitions of offenses were overly broad and vague and that punishments were too subjective.  “Our goal is to ensure that students are in school and minimize the number of days that students are removed from schools.”

Prince George’s revisions align its policy with school discipline regulations proposed by Maryland state education officials.  State educators are concerned that zero tolerance disciplinary policies are causing students to lose critical instruction time and falling behind their peers.

The new policy does not govern a student’s personal use of technology outside of school, buts states that if a student uses social media to “create a threat to students, staff or administration within the school environment and impedes opportunities for learning, the school will apply disciplinary action.”

Source: The Washington Post, 9/18/13, By Ovetta Wiggins

[Editor's Note: As referenced in the Clip, in August 2012 Legal Clips summarized an article in the The Washington Post reporting that the Maryland State Board of Education (MBE) had preliminarily approved regulations intended to reduce suspensions, keep students in class, and create a less punitive environment in public schools.  The revised regulations place Maryland among states and school systems at the forefront of a national movement to rethink how students in trouble are punished, and whether too many are suspended and expelled for offenses that could be handled in other ways.  The MBE has since revised its proposed regulations, after receiving complaints from local school systems, and in July, 2013 republished them for comment.] 

Male student strip-searched by female administrator has valid claim against district for violating Fourth Amendment search and seizure rights

Cox v. Sampson Cnty. Bd. of Educ., No. 12-344 (E.D.N.C. Sept. 9, 2013)

Abstract: A North Carolina federal district court has ruled that a male elementary school student who was strip-searched by a female assistant principal has a valid cause of action against a school district based on the theory of municipal liability under 42 U.S.C. § 1983 (Section 1983) for violating his Fourth Amendment search and seizure rights. It found that the student’s allegation that the school district failed to properly train its employees regarding the board’s student search policy was factually sufficient to plead a valid claim of municipal liability. However, the panel dismissed the claim against the assistant principal in her official capacity because it was duplicative of the claim against the school district.

In regards to the allegation that the search violated the student’s Fourth Amendment right to be free from unreasonable searches, the district court concluded, for purposes of the motion to dismiss, that the student’s allegations raised a sufficient question as to whether the search was unreasonable based on the U.S. Supreme Court’s holding in Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364 (2009). It also upheld the student’s challenge to the search on state constitutional grounds. However, the district court dismissed the claim against the assistant principal in her personal capacity because the state constitution does not support a claim for money damages against an individual acting in their personal capacity.

Facts/Issues: J.C., a student at Union Elementary School (UES), was suspected of having taken $20 from another student in the cafeteria where that student had spilled several coins. J.C. had helped the student retrieve those coins from under the table. However, it was reported to UES Assistant Principal Teresa Holmes that $20 was missing.

Holmes asked J.C. if he had the money. He replied that he did not. Holmes then took J.C. to her office, and asked a custodian to meet her there. With the custodian present, Holmes shut the door and asked J.C. again if he had the money, which he denied, pulling out his pockets to show her.

Holmes then told J.C. she was going to search him, instructing J.C. to remove his shoes, socks, pants and shirt. J.C. was then wearing only his undershirt and undershorts. Holmes ran her fingers around the inside of his waistband of the undershorts and lifted his undershirt.

Holmes found no money on J.C.’s person. Holmes told J.C. that she had the authority to search him because teachers and other students thought he had the money. A teacher subsequently informed Holmes that the missing $20 had been found on the cafeteria floor. J.C. returned to his classroom and completed the school day.

The following week, J.C.’s mother spoke with Suan Warren, the Public Relations/Student Services Coordinator for the Sampson County Board of Education (SCBOE), who informed her that school personnel have the authority to perform searches and that Holmes was within her rights. The mother also spoke with UES Principal, Dr. Linda Jewel-Carr, who was unaware of the incident. Upon questioning by Jewel-Carr, Holmes acknowledged searching J.C. and stated that she was within her rights in conducting the search.

J.C.’s suit against SCBOE and Holmes (as defendants) in federal district court asserts claims for unreasonable search and seizure under the Fourth Amendment and state law. The defendants filed a motion to dismiss for failure to state a claim.

Ruling/Rationale:  The district court denied in part and granted in part the defendants’ motion to dismiss. It denied the motion as to the Fourth Amendment and state constitution claims against SCBOE. The court granted the motion to dismiss the Fourth Amendment claim against Holmes in her official capacity because it was duplicative of the claim against SCBOE. It also granted the motion as to the state constitution claim against Holmes in her personal capacity because the state constitution does not support a claim for money damages against an individual acting in their personal capacity.

The district court began its analysis by pointing out that the Fourth Amendment search and seizure claim was brought under Section 1983 on the theory of municipal liability. In order to establish a claim based on municipal liability, a plaintiff must show “the existence of an official policy or custom that is fairly attributable to the municipality that proximately caused the deprivation of their rights.”

The court stated that municipal liability based on policy or custom can arise in four ways: (1) through an express policy, such as a written ordinance or regulation; (2) through the decisions of a person with final policymaking authority; (3) through an omission, such as a failure to properly train officers, that manifest[s] deliberate indifference to the rights of citizens; or (4) through a practice that is so persistent and widespread as to constitute a custom or usage with the force of law. It emphasized that a school board as a governmental entity is not liable for the discretionary decisions of individual actors.

The court then examined J.C.’s claim that SCBOE’s failure to properly train its employees, such as Holmes, resulted in the violation of J.C.’s Fourth Amendment right to be free from unreasonable searches. It restated SCBOE’s assertion that J.C.’s allegations were conclusory because those allegations “failed to cite the policy or point to a custom of the Board ignoring similar conduct.” The court noted that a “[Section] 1983 claim based on a theory of inadequate training is actionable only where the municipality’s failure to train its employees in a relevant respect evidences a deliberate indifference to a citizen’s constitutional rights.”

SCBOE Policy 4342 was identified by the defendants as governing searches of students. It states that:

A student’s person . . . may be searched whenever a school authority has reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating a law or a school.

If a frisk or “pat down” search of a student’s person is conducted, it must be conducted in private by a school official of the same gender and with an adult witness of the same gender present, when feasible.

If the school official has reasonable grounds for suspecting that the student has . . . an item imminently dangerous to the student or to others, a more intrusive search of the student’s person may be conducted. Such a search may be conducted only in private by a school official of the same gender, with an adult witness of the same gender present, and only upon the prior approval of the superintendent or designee, unless the health or safety of students will be endangered by the delay that might be caused by following these procedures.

J.C. argued that his allegations were valid because: (1) Holmes, a female, conducted a search of J.C., a male; (2) Holmes failed to get the approval of the Superintendent or designee prior to conducting the search of J.C.; and (3) the subject of the search, a $20.00 bill, is not an item of imminent danger to J.C. or other students so as to justify the more intrusive search of his person.

The defendants countered that Policy 4342 clearly establishes that Holmes had no authority to conduct the search and, thus, under Section 1983, which rejects the theory of respondeat superior liability, J.C. failed to state a claim against SCBOE.

However, the court rejected the defendants’ argument that the existence of the policy alone absolved SCBOE of municipal liability. Pointing out that on two occasions, the principal and Holmes stated that Holmes was within her rights and had the authority to conduct such searches, it concluded “[s]uch an allegation lends support to Plaintiffs’ position that the SCBOE failed to properly train its employees.” As a result, it held that J.C. stated a valid Section 1983 claim for municipal liability.

Because J.C. conceded that his Fourth Amendment claim against Holmes in her official capacity was duplicative of the claim against SCBOE, the court dismissed that claim without further analysis. It then turned to the question of the reasonableness of the search conducted by Holmes.

The court pointed out that searches of students by school officials are subject to a less stringent standard than the probable cause standard applied to the general public. Under the reasonable suspicion standard set forth in New Jersey v. T.L.O., 469 U.S. 325, 342 (1985), a school official’s search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction[.]”

In Redding, the U.S. Supreme Court held that “the search of the student’s bra and underpants was unconstitutional because there were no reasons to suspect the drugs presented a danger or were concealed in her underclothes.” It found the defendants’ attempt to distinguish Redding from the present case unpersuasive. The court, instead, found that “[t]he central inquiry is whether the search was permissible and not excessively intrusive in light not only of J.C.’s age and sex but also the nature of the infraction.”

The court concluded: “It is plausible that a search of the underclothes of a student, conducted by an adult of the opposite sex, looking for money, which poses absolutely no danger to the student or others, is excessively intrusive and not permissible under the Fourth Amendment.” It therefore, held that, for purposes of a motion to dismiss, J.C. had stated a Fourth Amendment claim.

The court also upheld the state constitutional search and seizure claim against SCBOE on the same ground.

Cox v. Sampson Cnty. Bd. of Educ., No. 12-344 (E.D.N.C. Sept. 9, 2013)

[Editor's Note: In December 2012, Legal Clips summarized an article in The Fayette Observer reporting that Clarinda and Lionel Shawn Cox, the parents of Justin Cox, had filed suit in federal court against the Sampson County Board of Education, alleging their then-fifth grade son was strip-searched in June 2012 by now-former Union Elementary School Assistant Principal Teresa Holmes for $20 reported missing in the school’s cafeteria.

In February 2013, Legal Clips summarized an article in The Morning Call reporting that the Palisades School Board had adopted a policy that would allow strip searches of students when other students and staff are believed to be in danger. “It would have to be something extreme....  If there’s imminent danger, we would probably do what is necessary,” said Director Stephen Kunkel, who is on the Board’s policy review committee.]

Former special education teacher who resigned after being reassigned failed to state valid retaliation claim under § 504 or the First Amendment

Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013)

Abstract: A majority of a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit (CO, KS, NM, OK, UT, WY) has ruled that a former special education teacher who resigned after being reassigned to a regular education classroom failed to state a valid claim for retaliation under the Rehabilitation Act (Section 504) or the Free Speech Clause of the First Amendment. It concluded that the letter of admonishment received from an assistant principal was not an “adverse action,” but her reassignment from a special education to regular education classroom did qualify as an “adverse action” because it involved a reduction in pay. The panel determined, however, that even though the teacher had established a prima facie case of Section 504 retaliation, she could not meet her burden of showing that the legitimate reason proffered by the school district for the reassignment was pretextual.

In regards to the First Amendment retaliation claim, the panel concluded that her speech to supervisors and others in the school district was made in the course of her official duties and, therefore, not protected by the First Amendment. However, it concluded that her communications with the state board of education were protected because it was speech made to individuals outside the chain of command and went beyond the scope of her official duties. Nonetheless, the panel found that the claim failed because the teacher failed to show that the speech was a substantially motivating factor in the school district’s decision to reassign her.

Facts/Issues: Louise Duvall was employed by Putnam City School District No. 1 (PCSD) as a special education teacher at Tulakes Elementary School (TES). She became concerned when PCSD began moving toward a “full inclusion” model for providing special education services. Duvall sent several e-mails to her superiors and also met with Glen Kastner, PCSD’s Executive Director of Special Services, on several occasions to discuss her concerns.

In addition to voicing her concerns to administrators, Duvall submitted letters of dissent relating to most of the IEPs with which she was involved during the 2007–2008 school year, and went to state agencies seeking information about “services for children.” However, she conceded that she did not specifically tell any school district officials that she was seeking information from those agencies.

In October 2007, Duvall received a letter of admonishment from TES Assistant Principal Marjorie Iven. PCSD asserted that the letter was written to Duvall “because of the manner in which she had conducted one specific IEP meeting and presented her Letter of Dissent.” Duvall admitted that the reason for the admonishment was that she “presented information at an IEP that supposedly offended the classroom teacher that was there.”

After Duvall requested a transfer, TES Principal Lee Roland responded by offering her a choice between two regular education positions for the following school year. Duvall informed him that she did not want to lose the extra 5% she made as a special education teacher. In May 2008, Roland informed Duvall that she was being assigned “to [f]irst grade for the 2008–2009 school year.”

According to Roland, “It was evident that [Ms.] Duvall did not agree with [the] District’s transition to a more inclusive model of serving special education students and that she was discontented in her current position as a special education teacher.” He added that he “believed that [Ms.] Duvall was unhappy in her current position as a special education teacher” and that “she would be happier and more comfortable in” first grade.

On April 16, 2009, Duvall filed a formal grievance stating that she felt “as though [she] ha[d] been treated differently from other faculty members.” On April 22, 2009, Ms. Duvall submitted her resignation. Shortly after, she filed suit against PCSD, Roland, and Iven in state court alleging PCSD’s adverse employment actions violated her rights under Section 504 and the First Amendment.

The defendants removed the suit to federal district court in Oklahoma. The court granted summary judgment on both of her retaliation claims.

Ruling/Rationale: A two-judge majority of the panel affirmed the lower court’s ruling. The third judge joined with the majority as to dismissal of Duvall’s Section 504 claim against Iven, but dissented from the rest of the majority’s opinion.

Addressing the Section 504 claim, the majority stated that under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Duvall can establish a prima facie claim of retaliation under Section 504 by showing that: “(1) she engaged in protected activity; (2) she suffered a materially adverse action by [Defendants] either after or contemporaneous with her protected activity; and (3) a causal connection [exists] between the protected activity and the adverse action.” If a prima facie case is established, the defendants have the burden of producing evidence of a legitimate, nonretaliatory reason for the adverse action. The burden then shifts back to Duvall to show the proffered reason is pretextual.

In regards to the materially adverse action prong of the test, the majority agreed with the district court that the letter of admonishment did not constitute an adverse action because: (1) Duvall admitted that the letter was issued because of the manner in which she presented the dissent, not the content of it; and (2) the letter did not “affect her employment or alter her workplace conditions.” The majority stated: “Moreover, it is clear that the letter of admonishment was triggered by the manner in which Ms. Duvall conducted her advocacy as opposed to the content of her advocacy activity.”

However, the majority found that Duvall’s reassignment to a first grade classroom was sufficient to make the necessary showing of an adverse action because it involved a loss of pay. As to the causal connection prong, the majority concluded Duvall’s reassignment was “relatively close in time to at least some of [her] dissenting letters or similar objections.” It, therefore, held that Duvall had therefore established a sufficient causal connection between her protected activity and her reassignment to make out a prima facie case of retaliation under Section 504 against Mr. Roland and PCSD.

Under the burden shifting mechanism, the majority found the defendants had produced a legitimate reason for the transfer, i.e., “because [Roland] believed she would be happier and more comfortable in [a first grade] position and that such a move would greatly benefit her, her students, and the school.” Like the district court, the majority determined that Duvall had failed to meet her burden of showing the reason proffered by the defendants was pretextual.

The majority concluded that “the school had multiple legitimate reasons for transferring Ms. Duvall – only one of which was Ms. Duvall’s unhappiness – and there is no evidence to support Ms. Duvall’s contention that Mr. Roland did not genuinely believe the school and students would be better served by transferring Ms. Duvall to a first grade position.” As a result, it held that Duvall had failed to make a claim under Section 504 based on Roland’s decision to reassign her to a first grade classroom.

The majority next turned to the First Amendment retaliation claim. It applied the five-part Garcetti/Pickering analysis (based on Pickering v. Board of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Garcetti v. Ceballos, 547 U.S. 410 (2006)). That test requires the employee to show that:

(1) the speech was made pursuant to an employee’s official duties; (2) the speech was on a matter of public concern; (3) the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) the protected speech was a motivating factor in the adverse employment action; and (5) the defendant would have reached the same employment decision in the absence of the protected conduct.

In regard to the first prong, the majority agreed with the district court’s conclusion that “Duvall’s speech to her supervisors and other individuals within the District was undertaken in the course of her official duties.” It found that Duvall had “failed to satisfy the first prong of the Garcetti/Pickering test with regard to any communications she made to her supervisors or to parents of children in the District.” On the other hand, the majority concluded that Duvall had “arguably satisfied the first prong of the Garcetti/Pickering test with regard to her communications to the State Board of Education, as these communications were to individuals outside her chain of command and went beyond the scope of her official job duties.”

Nonetheless, the majority stated: “That being said, we agree with the district court’s conclusion that “[e]ven if [Ms. Duvall’s] First Amendment claim survived the first three steps of the Garcetti/Pickering analysis, it would nonetheless fail at the fourth step because of lack of evidence of causation.” Specifically, it found that Duvall had “failed to produce any evidence establishing that Defendants were aware of her alleged communication of her views regarding the District’s full inclusion model to the State Department of Education,” and thus, “could not have been a motivating factor in any adverse employment action, ….””

In regards to the  Section 504 claim, the third judge parted ways with “the majority’s determination that Ms. Duvall has failed to come forward with evidence sufficient to create a material dispute on the question of whether the District’s proffered reasons for its decision to reassign her were pretextual.” In the dissenting judge’s opinion, Duvall had presented credible evidence that what would have made her “happy” was for “Defendants to have rectified the sources of her complaints – and not, as the District and Mr. Roland argue, for Defendants to involuntarily reassign her to a position with lower compensation and outside her field of professional concentration.”

The dissent stated:

In my view, for the district court to determine, solely on the papers before it and without a searching trial by jury, that it was reasonable and plausible for the District and Mr. Roland to “honestly believe” that Ms. Duvall sought such a result, was error. I would reverse the entry of judgment in favor of the District and Mr. Roland on Ms. Duvall’s retaliation claim under the Act.

As to the First Amendment claim, the dissent disagreed with “the majority’s determination that Ms. Duvall has failed to produce any evidence that Defendants were aware of her communications with the Department regarding her views on the subject of the District’s new ‘full inclusion’ teaching model.” It argued that “there is at least a genuine issue of material fact in regards to whether Ms. Duvall communicated her views on the full inclusion model to the Department, as well as whether such communications and their content were known to Defendants before they took their adverse employment action against Plaintiff. “

Duvall v. Putnam City Sch. Dist. No. 1, No. 11-6250 (10th Cir. Aug. 5, 2013)

[Editor's Note: In September 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) in Ross v. Litchtenfeld holding that a former school district employee failed to state a valid First Amendment retaliation claim based on exercising her free speech rights because was she speaking pursuant to her official duties. The panel concluded that the employee’s reporting of financial irregularities to the district superintendent and school board was pursuant to her official duties as a payroll clerk. The panel pointed out that the record was clear that reporting pay irregularities to a supervisor was one of her job duties. It also noted that she acquired all of the information she reported to the superintendent in the normal course of her work duties.]

South Carolina district sued over elementary school graduation at Christian college chapel

Greenville Online.com reports that the American Humanist Association (AHA) has filed suit in federal court against Greenville County School District (GCSD) alleging that the school district’s policy/practice of allowing one of its elementary schools to hold graduation ceremonies at a nearby Christian college violates the First Amendment’s Establishment Clause.  Mountain View Elementary held its graduation May 30 at North Greenville University, which is affiliated with the South Carolina Baptist Convention.

GCSD spokesman Oby Lyles said, “We have not been served with the lawsuit and learned about it through the local media.  Previously, the school district responded to the organization’s concerns in two letters, noting that our legal counsel would discuss them further if they had questions about our position.”

Monica Miller, an attorney and legal consultant with AHA’s legal center, said, “The federal courts have been clear that events like these violate the constitutional principle of separation of church and state.”

The suit claims that the official written program for the elementary school graduation provides for prayers on two occasions as part of the ceremony, which took place in North Greenville’s Turner Chapel.  The suit also claims that  the university’s chapel auditorium includes a Christian cross on the podium and stained glass that depicts religious imagery.  Two student speakers were asked to write a prayer for the ceremony which was reviewed by a school staff member, the suit alleges.

The suit seeks to stop school-sponsored prayers at future events.  It also asks for an unspecified award, punitive damages, and attorneys’ fees.

GCSD General Counsel Douglas Webb wrote Miller on June 25, 2013, advising AHA that GCSD officials, if they decide to use the university’s chapel in the future, “will ensure that the space used by Mountain View is devoid of religious iconography that would lead a reasonable observer to believe that the district is endorsing religion.”

Webb’s letter added, “As it pertains to the use of prayer of students, the district is committed to not endorsing the use of such prayer by students, and therefore, any prayer given by a student at a school-sponsored event, including an awards program for Mountain View Elementary, will be under different circumstances than that of the May 30, 2013 program.”  However, he emphasized that GCSD “will not create a policy that prohibits student-initiated and led prayers at future events as you [AHA] requested.”

Source: Greenville Online.com, 9/12/13, By David Dykes

[Editor's Note: AHA's press release announcing the suit states:

The suit reveals that prayers given by students during the 2013 graduation ceremony were solicited and approved by school administrators and were explicitly Christian.  The suit also makes clear that other non-sectarian venues are available for future ceremonies, including the elementary school itself, as well as other nearby public schools and community centers.

AHA's Legal complaint states:

The Defendants’ policy and practice of permitting, sponsoring, staging, promoting, endorsing, affiliating itself with, and presenting prayers at school-sponsored events, including graduation ceremonies, violates the Establishment Clause of the First Amendment to the United States Constitution.

The Defendants’ policy and practice of holding public school events, including elementary school graduations, in sectarian venues, such as the Christian Chapel, violates the Establishment Clause of the First Amendment to the United States Constitution.

In February 2013, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) in A.M. v. Taconic Hills Ctr. Sch. Dist., ruling that a school district did not violate a middle school student’s First Amendment free speech rights when school officials prohibited a student, a class officer scheduled to speak during a “Moving-Up Ceremony,” from including religious references in her speech. The panel concluded that because the speech was scheduled to occur at a school-sponsored activity, school officials could “exercise editorial control over student speech ‘so long as their actions are reasonably related to legitimate pedagogical concerns.’"]

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