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Former athletic director’s Title IX suit claims he was fired for raising concerns that Rhode Island district’s fundraising practices are creating unequal opportunities for female and minority student-athletes

The Providence Journal reports that Christopher Tashjian, who was the athletic director at Cumberland High School, has filed suit in federal district court against the Town of Cumberland, its treasurer and Supt. Phillip Thornton alleging that they  violated his rights by wrongfully terminating him because of his assertions that the school system’s fundraising practices were violating the federal Title IX law. The town and Thornton denied the allegations in responding to the complaint. They argue that Tashjian did not exhaust all administrative remedies before filing suit and that they are protected by qualified immunity, which shields public officials from being sued for damages unless they violate a clearly established law about which a reasonable official in the same position would have known.

The suit states that Tashjian, brought his concerns to Thornton’s attention shortly after being hired in August 2014 and received permission to develop protocols for booster club funding. The suit indicates that Tashjian met strenuous resistance to the new protocols from stakeholders, particularly with respect to provisions intended to ensure equal opportunities for all students. Booster club members, largely parents and student athletes, voiced opposition to the new protocols to the School Committee and administration.

According to the suit, Cumberland participated in a girls cooperative hockey team with other communities. The parents of those team members were informed that they would have to fund that program themselves from that point on. The School Committee asserted that it had never intended to fund the team since its inception in 2012 and presented the parents with past invoices. Thornton also opposed school funding of the team.

The suit asserts Tashjian again expressed concern that the School Committee was not supporting the girls’ hockey team in the same way that it was supporting the boys’ hockey team and that the failure to support was a Title IX violation. He expressed those concerns via a letter during the budget process, but was met with the response that it would not be added to the 2015-2016 budget. Thornton then eliminated the team, despite the parents raising money for it, and ordered Tashjian to deliver the news to the girls’ hockey booster club.

In June, Thornton summoned Tashjian to human resources and he was informed he was not a “good fit” as athletic director and that his contract would not be renewed, the suit says. Tashjian alleges that Thornton specifically complained about his lack of support for eliminating the girls hockey program.

In addition to his Title IX claim, Tashjian alleges that the defendants violated Rhode Island’s Whistleblower’s Protection Act. His suit is seeking unspecified damages.

Source: Providence Journal, 9/7/15, By Katie Mulvaney

[Editor’s Note: In October 2014, Legal Clips summarized a decision by the U.S. Court of Appeals for the Ninth Circuit in Ollier v. Sweetwater upholding a class action Title IX claim of unequal participation against a California school district. The panel also upheld the plaintiffs’ Title IX retaliation claim. It found that the school district had failed to satisfy the three-part test laid out in the U.S. Department of Education regulations for demonstrating compliance with Title IX’s “effective accommodation” requirement. It concluded that the school district had not “fully and effectively accommodated the interests and abilities of its female athletes.” As a result, the panel affirmed the district court’s summary judgment in favor of the plaintiffs on their Title IX unequal participation claim. With regard to the retaliation claim, it held that the district court had correctly found that plaintiffs’ coach was fired in retaliation for their Title IX complaints, not for any of the pretextual, non-retaliatory reasons advanced by the school district.]

 

Ninth Circuit remands suit challenging Arizona law restricting ethnic studies programs in schools on equal protection and viewpoint discrimination claims

Arce v. Douglas, Nos. 13-15657/13-15760 (9th Cir. Jul. 7, 2015)

Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel has held:

  • 15-112(A)(3) of Arizona’s ethnic studies law is overbroad in violation of the First Amendment;
  • Neither §§ 15-112(A)(2) nor (A)(4) are overbroad in violation of the First Amendment;
  • Neither §§ 15-112(A)(2) nor (A)(4) are vague in violation of the Due Process Clause;
  • There were genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent, thus, the panel reversed the district court’s grant of summary judgment and remanded for trial on the equal protection claim; and
  • The panel remanded plaintiffs’ First Amendment viewpoint discrimination claim to the district court for further proceedings in accordance with its opinion.

The panel was unanimous in its judgment, except as to remanding the equal protection claim for trial on the merits. The dissenting judge argued that the claim should be remanded for further proceedings without precluding further consideration of summary judgment.

Facts/Issues: Arizona enacted Arizona Revised Statute § 15-112(A), which prohibits a school district or charter school from including in its program of instruction any courses or classes that: (1) Promote the overthrow of the United States government; (2) Promote resentment toward a race or class of people; (3) Are designed primarily for pupils of a particular ethnic group; and (4) Advocate ethnic solidarity instead of the treatment of pupils as individuals.

Pursuant to the law, then-State Superintendent of Public Instruction Tom Horne issued a finding in late 2010 that Tucson Unified School District No. 1 (TUSD) was in violation of § 15-112(A) because of courses offered as part of TUSD’s Mexican American Studies (MAS) program. Horne issued his finding on his last day in office, which was two days before the law took effect. In June 2011, Horne’s successor, John Huppenthal, issued a second finding that TUSD was in “clear violation” of Subsections 15-112(A)(2), (3), and (4), based on his conclusion that the MAS program contained content promoting resentment towards white people, advocated Latino solidarity over the treatment of pupils as individuals, and was primarily designed for Latino pupils. State Superintendent Huppenthal ordered TUSD to bring the MAS program into compliance within sixty days.

TUSD filed an administrative appeal of Huppenthal’s finding. In December 2011, an administrative law judge (ALJ) concluded that the MAS program violated Subsections §§ 15-112(A)(2), (3), and (4). Huppenthal then issued an order accepting the ALJ’s “recommended decision.” While the administrative proceeding was pending, the plaintiffs, which included ten MAS teachers, the Director of the MAS program, and two TUSD students filed suit in federal district court. The teachers’ and director’s claims were dismissed for lack of standing. A former student and his mother were allowed to intervene as plaintiffs.

The plaintiffs filed a motion for summary judgment contending that § 15-112 is (1) unconstitutionally overbroad; (2) facially vague; and (3) vague as applied. They also moved for a preliminary injunction relying on those claims, but also relying on equal protection and substantive due process claims. The defendants filed a motion for summary judgment on all the plaintiffs’ claims.

The district court granted the state’s motion for summary judgment, dismissing the plaintiffs’ claims that Arizona Revised Statute § 15-112, which limits school districts’ ability to provide certain race-related curricula, violates their First Amendment speech rights and Fourteenth Amendment due process and equal protection rights. However, the court found unconstitutional one provision in the statute which prohibited classes designed primarily for students of a particular ethnic group. Nonetheless, it was severable from the other portions of the statute, leaving the bulk of the law intact. The court granted the plaintiffs’ motion for summary judgment in regard to Subsection 15-112(A)(3), finding that provision unconstitutionally overbroad and an infringement upon the right to teach and learn legitimate and objective ethnic studies.

Ruling/Rationale: The Ninth Circuit panel affirmed in part and reversed in part. It remanded the equal protection claim for trial. It began with a discussion of the equal protection claim. It concluded that the district court’s sua sponte grant of summary judgment in the state’s favor at the preliminary injunction stage was inappropriate. It found: “[T]he district court, by not offering plaintiffs notice of its intent to convert the preliminary injunction motion into basis for grant of summary judgment, deprived plaintiffs of the opportunity to submit additional evidence and argument on the merits of their equal protection claim.”

The panel held that “the district court abused its discretion in sua sponte granting summary judgment for defendants on plaintiffs’ equal protection claim.” However, only two of the three members of the panel agreed that there was “no reason to remand the equal protection claim for additional briefing on summary judgment, because, even on the record before us, we find that there are genuine issues of fact regarding whether the enactment and/or enforcement of § 15-112 was motivated at least in part by a discriminatory intent.”  As a result, the two judge majority reversed the district court’s grant of summary judgment for defendants and remanded the equal protection claim for trial.

The majority stated it reached the conclusion to remand for trial even though it agreed with the district court that § 15-112 is not facially discriminatory. It pointed out that even if § 15-112 was not facially discriminatory it could “still be unconstitutional if its enactment or the manner in which it was enforced were motivated by a discriminatory purpose.” It then laid out the five factor test articulated by the U.S. Supreme Court in Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1997), for determining whether a defendant acted with discriminatory purpose:

1) the impact of the official action and whether it bears more heavily on one race than another; 2) the historical background of the decision; 3) the specific sequence of events leading to the challenged action; 4) the defendant’s departures from normal procedures or substantive conclusions; and 5) the relevant legislative or administrative history.

Applying the Arlington factors, the majority agreed with the plaintiffs that “there is at least a genuine issue of material fact as to whether the statute was enacted and enforced with discriminatory intent.” Regarding the first factor, it concluded “the enactment and enforcement of § 15-112 has had a disproportionate impact on Mexican American and other Hispanic students.” Jumping to the fifth factor, the majority said, “Here, the legislative history of § 15-112 and the sequence of events (including the administrative history) leading to its enactment reasonably suggest an intent to discriminate.” It pointed out that “[d]uring hearings regarding H.B. 2281, which was later codified as § 15-112, the MAS program was the sole target of the legislative effort.”

The majority also discussed the actions taken by Huppenthal from the time he was in the state legislature through assuming the office of state superintendent of schools and Horne from the time he was state superintendent of schools through assuming the office of state attorney general to eliminate the MAS program at TUSD. It concluded:

In short, applying the five Arlington Heights factors to the evidence of record—taken, as it must be for these purposes, most favorably to plaintiffs—there is sufficient evidence to raise a genuine issue of material fact as to whether the enactment and/or enforcement of § 15-112 here challenged was motivated, at least in part, by an intent to discriminate against MAS students on the basis of their race or national origin.

The panel then examined the plaintiffs’ First Amendment claims. It rejected the Ninth Circuit decisions cited by the defendants for placing restrictions on circular speech as government speech. It found that neither of cases “involved a student’s First Amendment rights, and are accordingly inapplicable to the instant case.” The panel focused its analysis on “determining the appropriate level of scrutiny that applies to a state’s decision to restrict classroom materials presented as part of a curriculum approved by a local school board in light of a student’s right to receive information and ideas.” It stressed that the analysis would involve balancing a student’s First Amendment rights and a state’s authority in educational matters.

After review the tests developed by four other circuits (Fifth, Seventh, Eighth, Eleventh) to deal with the breadth of a student’s First Amendment rights in the context of the development of a school curriculum, the panel adopted “the standard employed by the district court and hold that the state may not remove materials otherwise available in a local classroom unless its actions are reasonably related to legitimate pedagogical concerns.” The district court followed the Eleventh Circuit’s decision in Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989), and applied the Supreme Court test in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988), to plaintiffs’ First Amendment claims.

Turning to the overbreadth claim, the panel first concluded: “We find nothing in plaintiffs’ occasionally broad rhetoric below that fairly put either the district court or defendants on notice that the entire statute [§ 15-112], either on its face or as applied, was being challenged as a whole on First Amendment overbreadth grounds. Accordingly, the issue is not properly before us here.” Regarding [§ 15-112(A)(2), it agreed with the district court that “the provision on its face is not overbroad in violation of the First Amendment, because the statute targets the design and implementation of courses and curricula and does not restrict individual student speech or class discussions.” As to § 15-112(A)(4), it also found that provision was not overbroad.

Addressing § 15-112(A)(3), the panel , as had the district court, found the provision was overbroad. It pointed out that “any legitimate purpose this provision could serve is already encompassed by subsections (A)(2) and (A)(4).” It  concluded “subsection (A)(3) threatens to chill the teaching of ethnic studies courses that may offer great value to students— yet it does so without furthering the legitimate pedagogical purpose of reducing racism.”

Moving on to the viewpoint discrimination claim, the panel remanded that claim because “the district court did not even review the evidence with respect to the viewpoint discrimination claim.” Regarding plaintiffs’ claim that § 15-112 is vague in violation of the Fourteenth Amendment Due Process Clause, it said, “For many of the same reasons discussed in the overbreadth analysis above, and in light of the statute’s purpose to reduce racism in schools, see A.R.S. § 15-111, we find that the phrases here in issue sufficiently give notice as to what conduct is prohibited and do not inherently invite arbitrary enforcement.” The panel concluded:

We agree with the district court that the juxtaposition of these phrases is sufficiently clear so that a teacher or school district could tailor its conduct to conform to the statute. For these reasons and the similar reasons in our discussion of the First Amendment overbreadth claims above, we affirm the district court’s holding that subsections (A)(2) and (A)(4) are not vague in violation of the Fourteenth Amendment.

The concurring in part and dissenting in part opinion agreed that the equal protection claim should be remanded. However, the judge disagreed with the majority that the plaintiffs had “presented sufficient evidence to establish that there is a genuine dispute of material fact on that issue.” The judge argued that the majority failed to recognize the difference between “the antipathy toward Tucson’s Mexican American Studies program (“MAS”) with animus toward Mexican Americans more generally.” The opinion found there was no evidence supporting the contention that the motivation for enacting or enforcing the statute was animus against Mexican Americans.

The judge said:

There could have been good reasons for public officials to oppose the Tucson MAS program without any racial animus whatsoever. The Tucson school district appealed the findings of Superintendent John Huppenthal that the program violated the statute, and following an evidentiary hearing, an administrative law judge found that the Tucson MAS program did, in fact, violate the statute.

Arce v. Douglas, Nos. 13-15657/13-15760 (9th Cir. Jul. 7, 2015)

[Editor’s Note: In January 2015, Legal Clips summarized an article from the Huffington Post reporting that a three-judge U.S. Court of Appeals for the Ninth Circuit panel heard oral argument in a suit challenging Arizona’s 2010 ethnic studies law. The law prohibits courses that promote the overthrow of the U.S. government, kindle ethnic resentment, foster ethnic solidarity or treat students as members of a group rather than as individuals.]

 

 

 

 

 

 

 

 

COSA Webinar: September 16, 2015 – Food for Thought: How New Nutrition Standards Are Affecting School Operations

Take a detailed look at the most recent federal activity on child nutrition programs, and how the new standards are affecting everyday operations in school districts, including outside vendor contracts, fundraising, food trucks, and wellness policies. We’ll start with a review of key federal actions, including The Healthy, Hunger-Free Kids Act of 2010, the “Smart Snacks” regulations, and new proposed professional standards for child nutrition professionals. NSBA lobbyist Lucy Gettman will shed some light on how those standards came to be. Then, COSA member Dionne Tunstall Jenkins will discuss the real-world implications of the new standards: how to handle “competitive foods” and other outside food vendors, how to have a bake sale without violating federal nutrition guidelines, and considerations for wellness policies. Register now for this webinar.

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Leza Conliffe, Senior Staff Attorney
  • Presenter: Lucy Gettman, NSBA Deputy AED, Federal Advocacy & Public Policy; Dionne Tunstall Jenkins, Winston-Salem/Forsyth County Schools

ACLU files suit challenging Nevada’s private school voucher program under state law, constitution

According to the Las Vegas Sun, the American Civil Liberties Union of Nevada (ACLU-NV) has brought suit challenging Nevada’s recently enacted private school voucher program on the ground the program violates state laws prohibiting public money from being used for religious purposes. The program, passed as SB302 by lawmakers earlier this year, goes far beyond similar voucher programs elsewhere in the country. Instead of only being available to certain families based on income or special needs, it is available to any family whose child is attending public school. Those who qualify will receive around $5,000 to spend on things like private school tuition, tutoring or distance education.

“The education savings account law passed this last legislative session tears down the walls separating church and state erected in Nevada’s constitution,” said Tod Story, executive director of the ACLU-NV. “So today we have filed a lawsuit to stop this unconstitutional program.”

ACLU-NV is seeking an injunction to stop the state from disbursing public funds under the program before the law officially takes effect at the start of next year. “The treasurer’s office has taken many steps to actively implement this program,” said Amy Rose, legal director for the ACLU-NV. “I think it’s very clear that if we don’t stop this, [the money] will go to private religious schools.”

Central to the debate is Nevada’s laws governing the use of public funds, and whether parents can take taxpayer dollars to use at schools that are often explicitly religious in nature. In its lawsuit, the ACLU included 10 pages of examples of religious private schools in the state that require students to learn religious doctrine.

ACLU-NV points to the Nevada Constitution, which states, “No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.” The suit also accuses state lawmakers of intentionally wording SB 302 to skirt existing state law, like Nevada Revised Statute 387.045, which states, “No portion of the public school funds shall in any way be segregated, divided or set apart for the use or benefit of any sectarian or secular society or association.” SB302 specifically exempts the program from that part of the statute.

State Treasurer Dan Schwartz said in his statement: “The ACLU certainly has the right to air their issues in court. But we believe that SB 302 is clearly aimed at aiding and improving our children’s education, whether it be in public or private schools, secular or non-sectarian institutions. The bill’s intent is to give parents the choice on how and where their children should be educated.”

Institute for Justice attorney Mark Keller said the libertarian organization, which helped craft the program, would fight the lawsuit. “We worked closely with the state legislature throughout the drafting process to ensure the program’s constitutionality, and we fully intend to defend it against this baseless and cynical lawsuit,” Keller said. “Nevada’s Education Savings Account (ESA) Program was enacted to help parents and children whose needs are not being met in their current public schools, and we will work with them to intervene in this lawsuit and defeat it.”

In June, the Colorado Supreme Court struck down the state’s voucher program, but other states have recently upheld theirs, including Alabama and North Carolina.

Source: Las Vegas Sun, 8/27/15, By Ian Whitaker

[Editor’s Note: The ACLU-NV’s legal complaint contains two counts: (1) Violation of Article XI, Section 10 of the Nevada Constitution (No-Aid Clause) – “under the Voucher Program, public money will be taken from the public treasury and used in support of sectarian purposes, in violation of this provision;” and (2) Violation of Article XI, Section 2 of the Nevada Constitution (Uniformity Clause) – “The Voucher Program violates this clause by providing public funding to a non-uniform and competing system of private schools whose curricula, instruction, and educational standards diverge dramatically from those of public schools.” 

In July 2015, Legal Clips summarized the decision of the Colorado Supreme Court in Taxpayers for Pub. Educ. v. Douglas Cnty. Sch. Dist. holding the plaintiffs lacked standing to bring their suit challenging Douglas County’s Choice Scholarship Pilot Program (CSP) under Colorado’s Public School Finance Act of 1994 (PSFA). It also reversed the judgment of the Colorado Court of Appeals overturning the trial court’s order permanently enjoining Douglas County School District (DCSD) from operating the CSP, and remanded the case to the trial court to reinstate the permanent injunction of the CSP. However, only a plurality of the state supreme court held that the CSP violates article IX, § 7 of the Colorado Constitution, which prohibits using public money to fund religious schools.

In August 2015, Legal Clips summarized the decision of the North Carolina Supreme Court in Hart v, North Carolina holding that North Carolina’s Opportunity Scholarship Program (OSP) does not violate any of  the state constitutional provisions that address public education, the right to education, the use of public funds for a public purpose, or religious discrimination. The supreme court’s majority rejected all of the plaintiffs’ claims and called into question the plaintiffs’, as taxpayers, standing to raise the religious discrimination claim based on the constitution’s equal protection provision.]

Eleventh Circuit rules that former bus driver stated valid ADA claim for failure to accommodate based on district’s refusal to provide driver with an air-conditioned bus even though she has a medically documented respiratory condition

Hill v. Clayton Cnty. Sch. Dist., No. 13-14951 (11th Cir. Aug. 7, 2015)

Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel has ruled that a former school bus driver has failed to state valid claims under Title VII for race discrimination and retaliation. However, it held that she stated a valid claim under the Americans with Disabilities Act (ADA) based on the school district’s alleged failure to provide her with a reasonable accommodation.

The panel rejected the race discrimination claim on the ground the driver had failed to establish a prima facie case that the refusal to provide her with an air-conditioned bus or terminating her was discriminatory. It also rejected the retaliation claim on the ground the driver failed to establish a causal connection between statutorily protected activity and an adverse employment action.

However, the panel found the driver had satisfied the elements necessary to state a prima facie case of discrimination under the ADA based on the school district’s failure to provide her with a reasonable accommodation. It concluded that there was a genuine issue of fact in regard to whether the driver was later offered an air-conditioned bus after she was placed on unpaid leave.

Facts/Issues: Edith Hill was employed by Clayton County School District (CCSD) as a school bus driver. After being assigned a bus without air-conditioning (AC), Hill experienced respiratory difficulties, shortness of breath and panting due to the extreme heat. She reported her problem to her supervisors who responded by telling her that there  were no air-conditioned buses available as they had all been assigned to more senior drivers.

She subsequently informed her supervisors that she would be able to drive her morning route, but not the afternoon route because of the intensity of the heat. She then filed an “Employee Request for Reasonable Accommodation” with CCSD. The request stated that “[t]he heat impair[ed Hill’s] ability to breath[e] properly” and “affect[ed her] ability to perform [her] job in a safe manner.”

Hill attached statements from two doctors to the request. Both doctors verified that Hill had difficulty breathing in the heat, but that she could still work as a school bus driver if provided an air-conditioned bus. Both doctors agreed that Hill had a breathing impairment, but that she could work if the district accommodated her with an air-conditioned vehicle.

After receiving the request, CCSD placed Hill on unpaid leave while it considered the accommodation request. Approximately two weeks later CCSD informed Hill that it was denying the request. However, the letter informing Hill of the denial did not disclose that the school district was in the process of acquiring additional AC buses. The parties dispute whether Hill was offered one of those buses in October 2009. An Equal Employment Opportunity Commission (EEOC) hearing transcript  reported that the offer was made at some point.

When CCSD’s lead bus driver called Hill to inform her that upon returning the following Monday her route would be changed, Hill declined to return to work citing that she was waiting for documents from EEOC. Hill consistently denied being told that CCSD had obtained additional AC buses.

After investigating Hill’s absence, CCSD terminated her in March 2010. Hill filed suit in September 2011 in federal district court against CCSD. The suit raised a discrimination claim and retaliation claim under Title VII, and an ADA claim based on CCSD’s failure to accommodate her request for an AC bus.

The district court granted CCSD summary judgment on all claims, even though a magistrate judge had recommended that the court deny summary judgment on the ADA failure to accommodate claim.

Ruling/Rationale: The Eleventh Circuit panel affirmed in part and reversed in part the district court’s decision. It upheld the summary judgment on the two Title VII claims, but reversed the lower court as to the ADA claim.

The panel concluded that Hill’s Title VII discrimination claim failed because she was unable to “establish a prima facie case that either the denial of an air-conditioned bus or her firing were discriminatory.” It found there was no evidence that being denied an AC bus constituted an adverse employment action, which is required element of a prima facie Title VII discrimination claim.

In regard to being terminated, the panel found Hill had failed to provide “a similarly situated employee as a comparator.” It pointed out: “After the magistrate judge pointed out the lack of a comparator in his recommendations, Hill responded only with a comparator for purposes of being denied an air-conditioned bus—not being fired.”

The panel also concluded that the Title VII retaliation claim failed “because Hill never established a causal relationship between statutorily protected expression and an adverse employment action.” It pointed out, as had the magistrate judge, that “there was a five-month gap between Hill’s EEOC filing and her termination, too much time to constitute a causal relation in this case.” The panel likewise rejected Hill’s argument that CCSD retaliated against her by placing her on unpaid leave. It found that the “argument makes no sense because [CCSD] placed Hill on unpaid leave before she filed her EEOC complaint.”

Turning to the ADA failure to accommodate claim, the panel held that Hill had established a prima facie ADA claim because she showed: (1) she is disabled, (2) she is a qualified individual, and (3) she was subjected to unlawful discrimination because of her disability. It rejected CCSD’s attempt to demonstrate that Hill was neither a qualified individual nor disabled. The panel pointed out that “Hill’s doctors reported that her breathing woes were both permanent and chronic.” It added, “The doctors also concluded, after reviewing Hill’s job description, that Hill could perform her job with reasonable accommodation.”

In regard to the third element of an ADA claim, the panel emphasized that there was “conflicting evidence on whether or not the [CCSD] ever actually made an offer to Hill.” In addition, it noted that even if CCSD had made an offer, “there is still a dispute as to whether making Hill wait two months was reasonable.”

The panel rejected the notion that providing Hill with an AC bus would constitute an undue hardship to CCSD, thus relieving the school district of the obligation to provide such accommodation, because “courts presented with sparse assertions that upsetting an equipment allocation process would constitute undue hardship have denied summary judgment.” It also pointed out that Hill had “previously assigned an air-conditioned bus, so it is difficult to understand how reassignment would upset the bus-allocation process in such a way as to cause undue hardship.”

Finally, the panel rejected the cases cited by the district court for the proposition that placing Hill on unpaid leave for two months was reasonable on the ground “all of these decisions are distinguishable because the plaintiff continued working (presumably for pay) in each.” It likewise rejected a case relied on by CSSD, saying the case was “distinguishable on grounds that the unpaid leave in that case lasted a mere fifteen days—a period of time short enough that it can be attributed to simple administrative reality,” while in the present, by contrast, “two months was more than enough time for the School District to overcome any administrative hurdles in providing Hill with an air-conditioned bus.”

Hill v. Clayton Cnty. Sch. Dist., No. 13-14951 (11th Cir. Aug. 7, 2015)

[Editor’s Note: In December 2010, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in Johnson v. Bd. of Trustees holding that a disabled teacher was not a “qualified individual with a disability” within the meaning of the Americans with Disabilities Act (ADA). As a result, it concluded that the school district’s decision not to renew the teacher’s employment contract did not violate her rights under the ADA.

The panel determined that even though the teacher’s failure to complete the professional development training required to obtain a teaching certificate was allegedly a result of her disability, under the ADA the school district was not required to provide her with reasonable accommodation so she could qualify as a credentialed teacher. The panel majority, citing the Equal Employment Opportunity Commission’s (EEOC) ADA regulations and guidance, found that the ADA contains no requirement that employers provide “reasonable accommodation to disabled individuals who fail to meet the job prerequisites on their own.”]

 

 

 

 

 

Suit alleges New Jersey high school officials’ search of special education student violated her Fourth Amendment rights

NJ.com reports that Samantha Bennett, who was a special education student at Cumberland County Regional High School (CCRHS), has filed suit against the Cumberland Regional Board of Education and the New Jersey State Police alleging she was searched in violation of her search and seizure rights under the Fourth Amendment. The suit claims Bennett was searched by either a school security guard or member of the New Jersey State Police — in view of other students and without parental notification. The suit also alleges the search was prompted by “an unfounded allegation” that she was in possession of Percocet without a prescription, however authorities did not find any drugs on her.

The suit was initially filed in Cumberland County Superior Court and was later moved to federal district court with the consent of the school district and state police. In addition to the Fourth Amendment claim, Bennett alleges invasion of privacy.

According to the suit, the search constituted assault, violated school policy, inflicted emotional distress and indicated negligence with regard to the lack of proper training for security. Bennett claims she suffered emotional distress from the incident, left CCRHS and was home schooled for the remainder of her high school education.

Source: NJ.com, 8/29/15, By Don E. Woods

[Editor’s Note: In January 2014, Legal Clips summarized a decision in K.P. v.  State of Florida by  a Florida Third District Court of Appeals panel upholding a juvenile court’s denial of a student’s motion to suppress evidence of a firearm found during a search of the student’s book bag by a school resource officer. The search was based on an anonymous tip. The appellate court’s majority concluded that given the reduced expectation of privacy, the moderate intrusiveness of the search, the gravity of the threat, and the reduced level of reliability necessary to justify a protective search, the decision to search the student’s book bag was reasonable under the Fourth Amendment.]

 

 

 

Tennessee district facing two suits stemming from alleged bullying, hazing on middle school football team

According to WSMV4, Dickson County Schools (DCS) is facing a pair of suits stemming from a series of alleged bullying incidents on the Dickson Middle School (DMS) football team. Attorney Roland Mumford, who is planning to file the suits, said, “This is up there in terms of the degree and pervasiveness of the bullying, not only with this set of facts but within this school district.”

Mumford said one lawsuit to be filed in state circuit court represents former volunteer asst. coach Shane Dunning. The lawsuit claims Dunning alerted school officials of bullying and the concern was not properly addressed. The lawsuit also says much of the bullying was done by a family member on the team of Coach Scott Roberts. Dunning contends he was let go as a volunteer asst. coach for bringing up the concerns. Mumford also said,”The school boards across this state try to avoid reporting a high number of bullying cases for the state of Tennessee, which they’re required to by law.”

Mumford said the second lawsuit will be filed in federal court on behalf of Northington and at least four more families. The lawsuit claims team members have been using racial slurs and threatening players with rape in addition to hazing and inappropriate touching in the locker room. “There is a culture of deliberate indifference on the part of schools director Danny Weeks and Steve Sorrells, and it permeates through the administration,” said Mumford.

Steve Sorrells of DCS  said they were contacted by two parents regarding the DMS football team allegations. He said the claims were unfounded and highly questionable. Sorrells said Dunning was let go for differences in coaching philosophy while the claims of racial slurs and rape threats were reported and investigated, Sorrells said no parents reported hazing and inappropriate touching to the school district. However, parent Kenya Northington disputes Sorrells, saying she did tell school officials about the hazing and inappropriate touching.

Source: WSMV 4, 8/24/15, By  Forrest Sanders

[Editor’s Note: In August 2015, Legal Clips summarized a story from WTAE Action News 4 reporting that the parents of a student at Trafford Middle School (TMS) had filed suit against Penn-Trafford School District (PTSD), alleging that the student was bullied and sexually assaulted at wrestling practice during the 2014-15 school year. The suit claims TMS’s wrestling coach egged on another student who was bullying their 13-year-old son, then told the teen to “toughen up” and “stop acting like a dead fish.”

In October 2014, Legal Clips summarized an article in The Washington Post reporting that Sayreville, New Jersey’s schools Superintendent Richard Labbe announced that War Memorial High School would be cancelling the remainder of the football season following allegations of hazing.]

 

 

 

Nevada district settles suit over student pro-life club and agrees to allow student to form club

Reuters reports that Clark County School District (CCSD) has entered into a settlement agreement with a high school student who filed suit after her application to form an anti-abortion student group on campus was denied. Angelique Clark, a student at West Career & Technical Academy (WCTA), is being represented by the Thomas More Society (TMS), a public interest law firm that focuses on issues of religious freedom.

The suit contended that the decision to deny Clark’s application for an anti-abortion club violated her constitutional right to free speech. An attorney for CCSD reached out to TMS to discuss a settlement, and this week school officials approved Clark’s club. “We’re pleased with the quick response we’ve received from district officials,” said TMS associate counsel Jocelyn Floyd.

CCSD issued a statement confirming that officials had agreed to permit the “non-curriculum related, student initiated and student-led group to meet this school year” at WCTA.

Source: Reuters, 9/2/15, By Alex Dobuzinskis

[Editor’s Note: In August 2015, Legal Clips summarized an article from Live Action News reporting on Clarks’s suit against CCSD and WCTA, alleging that school officials were violating her First Amendment free speech rights by preventing her from forming a pro-life club at school.] 

Iowa district settles employment discrimination suit that claimed employee was terminated for taking medical leave for brain surgery

According to the Sioux City Journal, Sioux City Community School District (SCCSD) has settled a lawsuit brought by a former paraeducator who alleged her contract was not renewed because she was taking too much medical leave after having brain surgery. SCCSD has agreed to pay Mandy Cook and her attorneys $145,000.

The Sioux City school board approved payments of $86,317.70 to Cook and $58,682.30 to Fiedler & Timmer, the Urbandale, Iowa, law firm that represented her. The money was paid by the district’s insurance carrier. Board president Mike Krysl said, “After conferring at length with legal counsel, board members agreed that the settlement represented the best interests of the school district.”

Woodbury County District Court dismissed the suit. SCCSD  has not admitted to wrongdoing or violation of any federal, state or local law as part of the settlement agreement. Cook agreed that she would not seek employment or re-employment with the district.

The suit alleged that during an annual performance evaluation with Sunnyside Elementary School Principal Kim Lockwood, Cook was criticized for taking medical leave and received a downgraded evaluation. A month later, she received a letter from the district notifying her that her contract would not be renewed based on her evaluation.

After filing a union grievance, Cook said, the district offered to allow her to return to work under a “Last Chance Agreement” in which she could return to work but give up her right to file future civil rights complaints or grievances regarding her evaluation. After Cook refused to sign the agreement, the district did not renew her contract.

Source: Sioux City Journal, 8/31/15, By Nick Hytrek

[Editor’s Note: In June 2011, Legal Clips summarized an article in Courthouse News Service reporting that a federal jury has awarded a grade school teacher more than $353,000 in damages based on her claims that she was mistreated and ultimately fired because of her disabilities. Renae Ekstrand was hired  by Somerset School District in 2000 as kindergarten teacher, but problems arose in 2004 when she was diagnosed with multiple sclerosis and requested a transfer to the first grade for stress relief.]

Fifth Circuit rules that former Mississippi district teacher/administrator has raised genuine issue of fact as to whether the district’s proffered reason for not hiring her was a pretext for discrimination under ADEA

Stennett v. Tupelo Sch. Dist., No. 13-60783 (5th Cir. Jul. 30, 2015)

Abstract: A U.S. Court of Appeals for the Fifth Circuit three-judge panel has ruled that a former teacher/administrator has presented sufficient evidence to raise a genuine issue of material fact as to whether the school district’s proffered legitimate reason for not hiring her was pretext for discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA). The panel concluded that “[i]n light of [the teacher/administrator’s] exemplary qualifications, pertinent experience, and excellent performance reviews, a reasonable juror could find it suspect that she would not even be provided the opportunity to interview for the vast majority of the positions she applied for with the school district.”

Facts/Issues: Mary Stennett was employed by Tupelo Public School District (TPSD) for the last 20 of 38 years as a public school teacher and administrator. However, after being assigned to the Fillmore Center, an alternative school, as a teacher/assistant principal, she was informed in May 2010 that TPSD planned to “outsource” operations of the Fillmore Center to a private contractor due to financial issues. The contracts of all employees, including Stennett’s, were not be renewed.

Stennett applied for three different positions for the 2010–2011 school year, but did not receive any interviews for those positions. Ultimately, TPSD re-hired several Fillmore Center employees who were substantially younger than Stennett, but did not re-hire the four oldest employees, including Stennett, to work on a full-time basis. Stennett was the only member of the school’s administrative team not to be re-hired by TPSD.

After outsourcing its alternative school program for the 2010-11 school year, TPSD reclaimed control of the program for the 2011-12 school year. The alternative school was now called the “Structured Day Program,” and the former director of the Fillmore Center was re-hired as director of the reestablished alternative school.

Stennett’s former position was not maintained. Stennett nevertheless was contacted by the director about an English-teaching position at the school for the 2011–2012 school year. However, she never heard back from the director. Stennett testified that she called him “quite a few times” and even left a note for him. The position ultimately was filled, and Stennett was never interviewed.

In June 2011, Stennett, then 66 years old, applied for seven different available positions with TPSD. Her applications for each of the seven positions were rejected, and TPSD filled each position with a person who was substantially younger than Stennett. Stennett was interviewed for only two of the seven positions.

Stennett filed suit in federal district court alleging that TPSD violated the ADEA when it refused to hire her because of her age for each of the seven positions. The district court granted TPSD’s motion for summary judgment, stating that Stennett failed to carry her burden of proving that she was “clearly better qualified” than the other applicants and that she therefore “failed to meet her burden of establishing a genuine issue of material fact as to whether [TPSD’s] proffered reason for failing to hire her is merely pretext.”

Ruling/Rationale: The Fifth Circuit panel reversed the district court’s grant of summary judgment, and remanded the case to it for further proceedings. It began by pointing out that a prima facie case of age discrimination under the ADEA had been made. It stated that the focus of the appeal was whether Stennett had presented sufficient evidence to raise an issue of material fact as to whether the legitimate reasons proffered by TPSD for not hiring her were a pretext for discriminating against her on the basis of age in violation of the ADEA.

The panel noted that because Stennett was challenging at the summary judgment stage, she did not have to prove TPSD’s reasons were pretextual, she simply had to muster enough evidence that a reasonable juror could find the school district’s proffered reasons for not hiring were a pretext for impermissible age discrimination. It concluded: “Stennett has presented additional evidence that, considered in tandem with her prima facie case, would support a jury finding that TPSD’s proffered reasons for not hiring her are ‘unworthy of credence.’”

The panel examined each category of evidence presented by Stennett to determine if she had created a genuine issue as to pretext. First, it found she had provided “substantial evidence showing her exemplary qualifications for the positions in question: three advanced degrees; four administrative and teaching certifications (two of which were AAA); thirty eight years of educational experience overall; and twenty years of experience within TPSD.”

The panel also pointed out that Stennett had “produced substantial evidence showing that her experience was directly pertinent to all of the positions in question, whereas some of the successful younger candidates lacked any pertinent experience.” It found that “[a] reasonable jury could consider the strength of Stennett’s qualifications vis-à-vis the successful younger applicants as undermining the credibility of TPSD’s proffered hiring rationale—i.e., that the younger successful applicants were selected because they were all better qualified than her.”

Continuing its examination of Stennett’s evidence regarding pretext, the panel agreed with her that TPSD’s failure to interview her for five of the seven positions she applied for “provides further support for a finding of pretext.” It stated: “In light of Stennett’s exemplary qualifications, pertinent experience, and excellent performance reviews, a reasonable juror could find it suspect that she would not even be provided the opportunity to interview for the vast majority of the positions.”

While acknowledging that the individual principals had final say as to who to interview, the panel stressed that “the record nevertheless supports a finding that the individual principals conferred in deciding not to interview Stennett.” In addition, it also noted that hiring for the positions was subject to TPSD’s superintendent, who after assuring Stennett he would lend her assistance gave “no explanation for why he did not inquire why Stennett was not recommended for these positions.” As a result, the panel concluded “that a jury reasonably could determine that it was not a mere coincidence that Stennett was denied interviews for the vast majority of these positions notwithstanding her exemplary qualifications, pertinent experience, and excellent performance reviews, particularly where some of the principals indisputably conferred in their decision-making process and where the superintendent was clearly aware of Stennett’s interest in the available positions.”

The panel additionally found that Stennett had produced “evidence showing that TPSD’s explanation for its hiring decisions relies upon qualifications nowhere listed in the job postings, some of which are ‘subjective’ in nature.” She also pointed to “evidence indicating that some of TPSD’s hiring decisions were purportedly based, in part, upon subjective considerations.”

The panel conceded that Stennett’s “hiring-criteria” evidence when viewed in insolation “might not be sufficient to support a rational inference that TPSD’s proffered hiring rationales are pretextual.” However, it stated that when “[c]onsidered in conjunction with other evidence probative of pretext, a rational jury could conclude that TPSD’s significant reliance upon unlisted and, in some instances, subjective job qualifications for filling the positions contributes to its suspicion of the veracity of TPSD’s purported hiring rationale.”

The panel noted that although evidence of TPSD’s failure to rehire the other oldest employees “on its own likely would not support an inference of pretext, a rational juror could conclude that TPSD’s failure to re-hire these employees on a full-time basis further weakens the credibility of TPSD’s proffered rationale for not hiring Stennett, thus buttressing a reasonable inference that the failure to rehire Stennett was based on her age.” In closing, the panel concluded:

[Stennett’s] evidence [of pretext] presents a set of facts from which a reasonable juror could disbelieve TPSD’s claim that it refused to hire Stennett because she was less qualified. Considered together with the evidence establishing her prima facie case, Stennett therefore has produced sufficient evidence to permit a rational jury to conclude that TPSD’s real reason for not hiring her was her age.

Stennett v. Tupelo Sch. Dist., No. 13-60783 (5th Cir. Jul. 30, 2015)

[Editor’s Note: In October 2013, Legal Clips summarized an article in Law 360 reporting that a week after hearing arguments in Madigan v. Levin, Docket No. 12-892, the U.S. Supreme Court dismissed the case on the grounds it had “improvidently granted” review, reports Law 360.  The brief dismissal order ended the Court’s consideration of whether state and local government employees can directly sue for age discrimination under the equal protection clause or must they follow the out-of-court procedures of the Age Discrimination in Employment Act (ADEA).]

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