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DOJ weighs in on Virginia district’s plans to develop attendance zone for new school

The Suffolk News-Herald reports that the U.S. Department of Justice (DOJ) has intervened in a pending decision by the Suffolk Public Schools (SPS) to create an attendance zone for a new elementary school in the city’s southwest, asking them to develop new plans to “further desegregation.”  The school board, which was poised to vote on two plans this week, has tabled the vote until next month after discussing DOJ’s concerning during a closed session.

Earlier this month, DOJ attorney Andrea E. Hamilton sent a letter to the board’s attorney, Wendell M. Waller, saying, “We cannot agree to either plan and request that the Board develop alternative rezoning plans that would further desegregation.” Hamilton’s letter also said, “The Board has a continuing obligation to comply in good faith with the desegregation order [issued against the school board in the early 1970s] and to eliminate the vestiges of past discrimination … ensuring that new school construction and rezoning efforts further desegregation and do not perpetuate or recreate racially identifiable schools.”

In addition, Hamilton stated that the two plans would make the new school a “racially identifiable white school,” while increasing segregation at existing schools from which it would draw.  “Neither rezoning plan furthers desegregation, and parts of both plans increase segregation,” she said.

DOJ has proposed specific attendance zones.

Superintendent Deran Whitney interprets DOJ’s input as “direction and guidance that’s obviously well-received, because we would hate” for any court order to result, adding that district officials would work on a mutually agreeable plan.

The DOJ Suit in 1970

In May 1970, DOJ brought suit against SPS alleging that the school district’s effort to desegregate using a freedom-of-choice plan was inadequate.  SPS submitted a desegregation plan, which the federal district court ordered to be implemented for the 1970-1971 school year.  In June 1970, DOJ  filed another motion, for supplemental relief, “alleging that the board’s plan had failed to disestablish the dual school system which had existed for many years.”

By the end of the new policy’s first year, 1970-1971, 25 teachers were not offered new contracts, and 21 of those were black. The faculty went from 59 percent to 52 percent black by 1972, and the policy had an even greater impact on the proportion of blacks hired as new teachers.

The U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) ultimately ruled that the board applied the new policy in a discriminatory manner, ordering the reinstatement, with back pay, of certain terminated teachers, and directed the district court to re-examine “the facts surrounding the dismissal of certain teachers,” placing responsibility on the school board to prove the dismissals were not linked to discrimination.

Source: Suffolk News-Herald, 3/18/14, By Matthew Ward

[Editor's Note: In January 2013, Legal Clips summarized an article in The Bolivar Commercial reporting that Glen H. Davidson, Senior U.S. District Court Judge for the Northern District of Mississippi, had issued an opinion in response DOJ’s allegation that the Cleveland School District (CSD) continued to practice a form of segregation by operating separate middle schools and high schools, which have nearly 100% black student populations.  CSD has been under a court-ordered desegregation plan since 1965.  Judge Davidson noted that magnet schools were a positive force in the school district and that he was pleased with the organization of the schools and their ability to attract students of all races.  However, the judge ordered CSD to make some changes.  He ordered that the "heretofore-established attendance zones shall be abolished, thus establishing an open-enrollment procedure."]

Louisiana district settles suit by Buddhist student claiming religious harassment

According to an Associated Press (AP) report in USA Today, the Sabine Parish School Board (SPSB) has settled a suit brought by Scott and Sharon Lane, the parents of a middle school student at Negreet High School (NHS). The suit charged that the student, who is Buddhist, was the target of harassment by school officials who pushed their Christian beliefs.  Among the allegations in the suit, a teacher at NHS told the student that Buddhism was stupid.

The settlement agreement, which was filed in federal district court as a consent decree, contains an extensive list of prohibited practices.  Some of the directives are: school officials will neither discourage nor encourage religious activities; they won’t assign readings from religious texts, absent a non-religious educational purpose; and they won’t express their personal religious beliefs in class or at school events.

The settlement agreement includes an award of $4,000 to Sharon Lane to cover her past costs of transporting her son to another school.  The board also will provide him with bus transportation as he continues to attend that school.

Source: USA Today, 3/14/14, By AP

[Editor's Note: In January 2014, Legal Clips summarized an AP article on ABC News reporting on the suit against SPSB.  The suit alleged that school officials harassed the student because of his Buddhist faith and that the ”school district’s administration — all the way up to the superintendent of schools — not only knows about these activities, but endorses and encourages all of this.”  The summary's editor's note contains a link to the legal complaint, filed by the ACLU.]

DOJ follows up on Racial Discrimination in Student Discipline guidance with COSA webinar

March 19, 2014 – Racial Discrimination in Student Discipline: A Close Look at the New DOJ/ED Guidance

On January 8, 2014, the United States Departments of Education and Justice issued a lengthy Dear Colleague Letter (DCL) on the subject of discriminatory practices in the administration of student discipline.  The DCL, summarized in NSBA’s Legal Clips, provides notice of the Departments’ interpretation of how student discipline policies and practices, both written and unwritten, can violate Title IV and Title VI of the Civil rights Act of 1964.  The DCL states the Departments’ concern with this issue in unequivocal terms: “In short, racial discrimination in school discipline is a real problem.”

The Departments’ focus on this subject creates a need for school districts to review their disciplinary policies and practices.  School attorneys can be of immeasurable help in a school district’s review, as ensuring the district’s compliance with Titles IV and VI will require a clear understanding of the DCL and the Departments’ interpretation of the interplay between those federal laws and student discipline.  To assist in this effort, Ms. Anurima Bhargava, Chief, Educational Opportunities Section, Civil Rights Division, U.S. Department of Justice will explain the Departments’ Dear Colleague Letter in a webinar sponsored by COSA.

Whether you are an in-house counsel or represent school districts as clients, you will not want to miss this opportunity to learn firsthand how the Departments apply titles IV and VI to student discipline. This DCL is new; and school districts will soon be asking for assistance in its interpretation and effect on their policies.  Obtain a copy of the DCL here.

Register for this timely webinar now, and consider inviting your school district clients to join you.  You may email questions in advance to NSBA Deputy General Counsel Naomi Gittins at NGittins@nsba.org.

  • Time: 1:00 p.m. – 2:15 p.m. (EDT)
  • Host: Francisco Negrón, General Counsel, National School Boards Association
  • Presenter: Anurima Bhargava, Chief, Educational Opportunities Section, Civil Rights Division, U.S. Department of Justice

Follow this link to register.

 

 

Kansas Supreme Court rules state’s education funding unconstitutional; orders state legislature to fix inequities between districts

The Wichita Eagle reports that the Kansas Supreme Court has issued a long-awaited decision finding wealth-based disparities in funding between school districts in the state to be unconstitutional, and ordered the legislature to address the matter by July 1, 2014.  The court declined to hold that the amount of state education funding violated the state constitution.

The decision affirmed some findings of a three-judge Shawnee County District Court panel, notably inequities in funding.  It set aside the trial court’s finding that funding for schools was inadequate, saying that the court had incorrectly based its findings only on cost studies.  The lower court had called for lawmakers to raise the base per-pupil state aid from $3,838 to $4,492, at a cost of about $437 million statewide.  The supreme court found that dollars alone did not determine whether funding is adequate, and that outcomes needed to be taken into account.

Both sides in the litigation declared partial victory, but offered widely divergent views of the court’s opinion.  The unanimous, 110 page decision sends the case back to the lower court for further action on equity.  The justices noted that that could also open the way to a fuller examination of the overall system of school finance.  They directed the panel to re-evaluate whether schools are adequately funded after inequities in funding are addressed.

The justices made clear that these are two distinct concepts, but added that the  “curing of the equity infirmities may influence the (district court) panel’s assessment of the adequacy of the overall education funding system.”  The decision outlines steps the legislature could take to correct inequities in capital building funding and in the local-option budget – local property taxes used to provide funding beyond the base funding that comes from the state.

If the legislature doesn’t act, the Supreme Court directed the district panel to issue injunctions to correct the equity flaws itself.

Source: The Wichita Eagle, 3/9/14, By Bryan Lowry, Suzanne Perez Tobias and Dion Lefler

[Editor's Note: The Gannon v. State of Kansas state supreme court decision may be accessed at this link. The three judge district court panel decision may be accessed in this Legal Clips article.

New York State Assembly votes to delay Common Core evaluations and sharing of data with Cloud vendors

The Capital New York reports that the New York State Assembly, in a 117-10 vote, has passed a bill delaying major aspects of the Common Core.  The bill removes Common Core-aligned test scores from teacher and principal evaluations for two years, and prohibits the state Education Department from sharing student information with third-party vendors for one year.

Assembly Education Committee chair Catherine Nolan said the bill is only intended to keep the education department from uploading student information into a statewide cloud, and she said department officials reached out to school leaders to “spook” them with fears that the legislation would do otherwise.  “The state education department is not shy about having their counsel weigh in on legislation,” Nolan said.  “It was particularly shocking to me that they would choose to not share that with us during the gestation process, and when I walked into that superintendent meeting yesterday, a lot of people had been spooked.  Education commissioner John King and Board of Regents chancellor Merryl Tisch argued in advance of the vote that the bill would “jeopardize day-to-day operations” at schools.

The bill does not have a Senate sponsor.  Senator John Flanagan, who chairs that chamber’s education committee, said his conference would not support the bill as currently written, but there will likely be a compromise on several of the bill’s components.

The state’s rollout of the Common Core has become one of the dominating issues of the session, prompted mainly by angry parents and teachers. Republican assembly members tried unsuccessfully to have the state withdraw from using the Common Core standards at least until there has been time to review them.  Governor Andrew Cuomo has denounced changes to the teacher- and principal-evaluation system, which he championed.

Source: Capital New York, 3/5/14, By Jessica Bakeman

[Editor's Note: In November 2013, Legal Clips summarized an article in  U.S. News & World Report reporting that South Carolina Parents Involved in Education (SCPIE) planned to demonstrate its opposition to the Common Core State Standards with a one day boycott of the state’s public schools to coincide with the beginning of National Education Week.  The group’s website further urged parents across the country to keep their children out of school in protest of the standards, which some see as a federal overreach into state educational policies.]  

Suit claiming California’s tenure laws deny minority students their constitutional right to education survives motion for judgment

EdSource reports that California’s education trial of the year, Vergara vs California, in which the plaintiffs argue that state tenure laws operate to deny poor, minority children their constitutionally guaranteed right to an equal opportunity for an education, will continue after the judge denied the defendants’ motion for judgment at the close of the plaintiffs’ case.  The judge rejected the state’s argument that, after presenting a month’s worth of evidence, the plaintiffs had failed to make their case.

The lawsuit was filed by Students Matter, a nonprofit created by business executive David Welch.  During a month of testimony, a high-profile team of lawyers presented 20 witnesses for the plaintiffs.  They included Raj Chetty, an economics professor at Harvard, whose research showed that grossly ineffective teachers – roughly 5 percent of teachers – cause “irreparable harm” to students, lowering their odds of graduating and getting into a good college, with the result that they will earn less and save less for retirement over their lifetimes.  Los Angeles Unified Superintendent John Deasy and former Sacramento City Unified Superintendent Jonathan Raymond testified that the time and great expense of firing bad teachers, caused by onerous dismissal laws, led to triage, in which some bad teachers remained on the job.

The plaintiffs also challenge a “last-in, first-out” law requiring layoffs by seniority.  Because less experienced teachers predominate in high-poverty schools, those schools are two-thirds more likely to have a teacher laid off than low-poverty schools, said Arun Ramanathan, executive director of Education Trust-West, which advocates for poor children.  Larissa Adam, a principal from Oakland, testified that the ineffective veteran teachers whom the district transferred to her high-poverty school after layoffs of newer teachers contributed to a disastrous decline in student achievement.  The statutes have a “real and appreciable impact on students’ fundamental right to education” and “directly cause school administrators to make vastly different teacher employment decisions than they would otherwise make if they were permitted to act in the best interests of students,” the plaintiffs’ attorneys argued in rebuttal to the dismissal motion.

In its motion to dismiss, the state argued that the plaintiffs acknowledged that most of the states’ 275,000 teachers are effective and that they failed to show that the laws, as opposed to inept handling of them, caused the hiring and retention of grossly ineffective teachers.  According to the state, the plaintiffs also failed to prove the students (only five of whom testified) were disproportionately harmed by grossly ineffective teachers or that they even were taught by them.

The State Attorney General’s Office, the California Teachers Association, and the California Federation of Teachers will now present their defense.

Source: EdSource, 3/4/14, By John Fensterwald

[Editor's Note: The complaint makes the following assertions:

3. Studies show that students who are unfortunate enough to be assigned to two or more grossly ineffective teachers in a row are unlikely ever to catch up to their peers.  But the problem is worse for students at schools that serve predominantly minority and economically disadvantaged populations because those schools have a disproportionate share of grossly ineffective teachers.  In certain school districts, students of color are two to three times more likely to have bottom-quartile teachers than their white and Asian peers.  Thus, the laws at issue perpetrate and widen the very achievement gap that education is supposed to eliminate.

42. The grossly ineffective teachers are disproportionately situated in schools that serve predominantly low-income and minority students.  A recent study of the LAUSD found that a “low income student is more than twice as likely to have a low value-added [English-Language Arts (“ELA”)] teacher as a higher income peer, and 66 percent more likely to have a low-value added math teacher.”  The data reveals that the “patterns are even more pronounced for students of color, with Latino and African-American students two to three times more likely (in math and ELA respectively) to have bottom-quartile teachers than their white and Asian peers.”

In April 2013, Legal Clips summarized a story from Southern California Public Radio 89.3 KPCC reporting that the California Teachers Association (CTA) and the California Federation of Teachers (CFT) were intervening as defendants in this lawsuit.]

Michigan teacher sues district over being ordered to undergo psychological examination

MLive reports a high school teacher in Michigan has filed suit in federal court against Arbor Public Schools after the school district ordered her to undergo a psychological examination as a condition of continuing her employment.

The teacher was initially placed on leave on December 10, 2013, and the district’s director of human resources ordered her to undergo a medical evaluation with a psychologist with whom the district had already scheduled an appointment in January 2014.   The exam was ordered “due to concerns regarding her job performance.”  It’s a measure the district can take under the teachers union contract.

The suit claims the district’s order that the teacher undergo the exam constituted an unlawful search in violation of her Fourth Amendment rights and violated her right to privacy.  The suit also contends the school district discriminated against the teacher.  It states that the district violated Michigan’s Person with Disabilities Civil Rights Act by “conditioning the terms and conditions of her employment on an unnecessary medical examination.”

The suit was originally filed to prevent the district from requiring the teacher to take the exam.  After the district agreed to cancel the exam,  the teacher withdrew her request for a restraining order.  However, the suit remains active as the teacher seeks unspecified damages.

The teacher claims that she has been rated as at least “effective” in all categories; hasn’t threatened others; hasn’t verbally abused students, colleagues or parents in the workplace; and hasn’t violated Michigan Public Schools policies nor discriminated in a way that’s illegal.  The district denies these claims in its court filing.

Source: MLive, 3/10/14, By Amy Biolchini

[Editor's Note: The December 1999 Inquiry & Analysis summarized a U.S. Court of Appeals for the Sixth Circuit three-judge panel decision in Sullivan v. River Valley School District, which is available to COSA members, upholding an ordered psychological examination.] 

New Jersey district rescinds requirement that parents show government-issued ID to register children for school to settle lawsuit

The Star-Ledger reports that the Butler School District (BSD) has agreed to stop requiring parents to show government-issued identification before registering their children in school as a settlement to a lawsuit brought by the American Civil Liberties Union of New Jersey (ACLU-NJ).  The state court suit was filed on March 7, 2014, and an expedited hearing was set for March 11th. Before the hearing, however, district officials agreed to stop fighting changes to its identification policy.

According to ACLU-NJ, the policy singles out immigrant communities because parents can only obtain these types of identification if they have a Social Security number or valid immigration status.

According to a New Jersey  Department of Education (NJDE) spokesman, every year NJDE reminds districts of their responsibility to enroll all local students, regardless of their immigration or visa status.

The lawsuit came out of a 2008 survey conducted by the ACLU-NJ of more than 500 school districts in New Jersey for information about required documents for school registration.  The telephone survey found 139 districts, including Butler, required parents to present documents that indicated their immigration status, a practice that violates New Jersey regulations.

Source: The Star-Ledger, 3/11/14, By Peggy McGlone

[Editor's Note: The ACLU-NJ legal complaint included three counts alleging: (1) violation of the U.S. Constitution's Fourteenth Amendment Equal Protection Clause; (2) violation of  Article I, paragraph 1 of the New Jersey Constitution guaranteeing individuals equal protection of the law; and (3) violation of Article VIII, Section IV, paragraph 1 of the New Jersey Constitution guaranteeing individuals a thorough and efficient education. 

The ACLU-NY 2008 survey referenced in the Star-Ledger article found that 139 of the 516 school districts and charter schools contacted required information that would reveal the Social Security number or immigration status of students seeking to enroll despite state, federal and constitutional laws prohibiting the practice. Another 48 suggested that immigration information would help in the registration process.  Thus, a total of 187 - more than one in three - responded in violation of the law or in a manner that might deter student enrollment.

In February 2014, Legal Clips summarized a notice from the Southern Poverty Law Center (SPLC) announcing that it had filed a complaint with the U.S. Department of Justice asking the department to conduct an investigation into two school districts in North Carolina.  The SPLC claims the districts discriminated against an immigrant child by denying, delaying, or discouraging enrollment. According to SPLC, the incident appears to be symptomatic of a larger problem in school districts across the state.] 

New Jersey settles federal court suit over segregation of special education students

The New Jersey Department of Education (NJDE) has agreed to a settlement in a federal suit challenging its oversight of special education in the state, says The Alternative Press.com.  According to the terms of the consent agreement, NJDE will take measures to insure that the districts with the lowest rates of inclusion follow through on remediation plans.

New Jersey is the leader among states in segregated special education settings, with half of all special-needs students predominately educated outside the general education classroom and one in 10 in separate schools. NJDE reached the consent agreement in a federal lawsuit filed seven years ago–Disability Rights New Jersey et al. v. New Jersey Department of Education, et al.  The plaintiffs included Disability Rights New Jersey, Education Law Center, Statewide Parent Advocacy Network and the ARC of New Jersey.

The agreement specifically calls for needs assessments and corrective plans for the 75 districts with the lowest rates of inclusion, both in K-12 programs and preschool.  During the needs assessment, school districts will be required to conduct a data review and analysis.  NJDE will conduct classroom observations and interviews with general education teachers, special education teachers, administrators, and parents.

Source: The Alternative Press.com, 3/2/14, By Staff

[Editor's Note: In February 2013, Legal Clips summarized a decision by a Bergen County Superior Court in J.T. v. Dumont Pub. Sch. holding that a school district had not failed to provide disabled students receiving special education services with reasonable accommodations in violation of the New Jersey Law Against Discrimination (NJLAD) when the district assigned those students to one school, rather than assigning each to their neighborhood school. Relying on the same analytical framework used to examine reasonable accommodation claims under the federal Americans with Disabilities Act, the Superior Court found that the plaintiffs were unable to show that they were “denied a cognizable benefit or program.”  It concluded that the students were receiving all the programs, activities, and benefits to which they are entitled as a result of their disabilities.] 

5th Circuit rejects section 504 peer bullying claim, where student committed suicide, finding school was not deliberately indifferent to events

Estate of Montana Lance v. Lewisville Indep. Sch. Dist., No. 12-41139 (5th Cir. Feb. 28, 2014)

Abstract: A U.S. Court of Appeals for the Fifth Circuit three-judge panel has ruled that a Texas school district did not violate a disabled student’s right to a free appropriate public education (FAPE) under section 504 of the Rehabilitation Act because the individualized education plan the district developed for the student provided him with a FAPE under the Individuals with Disabilities Educational Act. It also rejected the family’s claim that the school district failed to adequately response to incidents of peer harassment/bullying in violation of section 504. The panel, applying the “deliberate indifference” standard established in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), determined that the district’s response to the incidents was not “clearly unreasonable” and, therefore, not deliberately indifferent.

In addition, the panel rejected the family’s § 1983 claims based on a “caused-to-be subjected” theory and “state-created danger” theory. It stated that neither had ever been adopted by the Fifth Circuit. The panel also found that the “state-created danger” theory failed on its own terms because “to succeed under § 1983 there must be a special relationship between the defendant and the victim” and in the present case “no special relationship exist[ed]” between the school district and the student.

Facts/Issues: Montana Lance attended Stewart’s Creek Elementary School (SCES) where he received special education services for his disabilities in accordance with his individualized education plan (IEP).  When Montana was in second grade his mother informed a teacher that “he was making verbal statements about hurting himself at home.”  The school obtained a full psychological evaluation, and as a result Montana was identified as “Emotionally Disturbed.”

Throughout his time at SCES, Montana was subjected to peer bullying.  On January 12th of his fourth grade year, Montana told a teacher he wanted to commit suicide.  School Counselor Mike Riek concluded that the “lethality” of Montana’s statements was low, but still notified Montana’s father.  Montana’s parents arranged for him to meet with a psychologist, on January 18th, who said Montana gave no indication that he was intending to commit suicide.

On January 21st some students called Montana a name and pushed him into the rails of the cafeteria serving line. Montana “stormed off and sat by himself at an empty table.”  Later that day, Montana was sent to the school office for talking in class.  While in the office he was allowed to use the nurse’s bathroom.  When a significant amount of time passed, the nurse checked on Montana, and he said “he’d be right out.”  However, Montana soon stopped responding to the nurse’s inquiries.  Because the nurse did not have a key, the custodian had to use a screwdriver to open the door.  When the nurse and custodian entered the bathroom, they found Montana hanging from his belt, which was secured to a metal rod in the ceiling.  Montana had no pulse and was pronounced dead upon arrival at the hospital.

The Lance family sued LISD in federal district court.  They alleged claims under § 1983, section 504, and state law.  LISD filed a motion for summary judgment on the family’s section 504 claims and special-relationship based § 1983 claims. The district granted LISD’s motion.

Ruling/Rationale: The Fifth Circuit panel affirmed the lower court’s decision.

One of the family’s claims was that LISD “acted with gross professional misjudgment by failing to provide Montana educational services necessary to satisfy § 504’s FAPE requirement (the “failure-to-provide” claim).  To prevail on this claim the Lances must show that the School District ‘refused to provide reasonable accommodations for the handicapped plaintiff to receive the full benefits of the school program.’ Marvin H. v. Austin Indep. Sch. Dist., 714 F.2d 1348, 1356 (5th Cir. 1983).”

The panel rejected this claim because LISD had provided Montana a FAPE under the IDEA and the “§ 504 regulations distinctly state that adopting a valid IEP is sufficient but not necessary to satisfy the § 504 FAPE requirements.” The parents never challenged the sufficiency of Montana’s IEP or the process through which it was developed.  In sum, the court ruled that:

The evidence establishes that the School District satisfied its § 504 FAPE obligations by implementing a valid IEP under IDEA. 34 C.F.R. § 104.33(b)(2).  Montana’s IEP “was developed through [IDEA’s] procedures” and was “reasonably calculated to enable the child to receive educational benefits.”  Accordingly, and because “to establish a claim for disability discrimination, in th[e] education context, something more than a mere failure to provide the ‘free appropriate education’ required by [IDEA] must be shown,” summary judgment was appropriate on the Lances’ failure-to-provide claim. [citations omitted].

The parent’s second 504 claim was that LISD was deliberately indifferent to the disability-based harassment Montana received from his peers.  The court set the legal stage:

This claim derives from Davis v. Monroe County Board of Education—a Title IX case. 526 U.S. 629 (1999).  Davis held that school districts may be liable for failing to address student-on-student sexual harassment “only where they are deliberately indifferent to . . . harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” 526 U.S. at 650. Circuit courts have extended Davis’s reasoning to claims for student-on-student harassment under Title VI [citations omitted]…. Other circuits also have interpreted Davis to apply with equal force in the § 504 setting [citations omitted]….In this case, the Lances and the School District do not dispute that Davis’s test applies to § 504 claims.

In the § 504 setting, Davis requires a plaintiff to show: (1) he was an individual with a disability, (2) he was harassed based on his disability, (3) the harassment was sufficiently severe or pervasive that it altered the condition of his education and created an abusive educational environment, (4) [defendant] knew about the harassment, and (5) [defendant] was deliberately indifferent to the harassment.

The panel focused on the deliberate indifference element, and noted that the Supreme Court in Davis narrowed its application.  The panel found this section of Davis instructive:

courts should refrain from second-guessing the disciplinary decisions made by school administrators . . . [s]chool administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed “deliberately indifferent” to acts of student-on-student harassment only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.

In the panel’s words, “Section 504 does not require that schools eradicate each instance of bullying from their hallways to avoid liability.  Judges make poor vice principals.” 

The panel determined that deliberate indifference could not be attributed to LISD for three reasons.  First, LISD had fully investigated the two documented incidents of harassment and punished all of the students involved.  Second, LISD staff had responded to Montana’s needs in a proactive manner, often intervening or showing initiative in helping him.  Third, the family’s expert acknowledged that LISD’s anti-bullying policies are “appropriate and up to national standards” and testified that LISD “provided an employee training presentation, entitled ‘Bullying and Harassment in Schools.’”

Relying on Fifth Circuit precedent, the panel concluded LISD’s “response was not clearly unreasonable.”  It emphasized that the fact that the response proves ineffective does not necessarily equate to it being “clearly unreasonable.”  The panel, citing Long v. Murray Cnty. Sch. Dist., 522 Fed. App’x 576 (11th Cir. 2013), also pointed out that other federal circuits have applied Davis in a similar manner.

The panel also rejected the parents various state-created danger theories under § 1983.  The theories have never expressly been adopted in the fifth circuit. Furthermore, there was no special relationship between LISD and Montana nor any evidence that the school knew about an immediate danger to Montana’s safety.

Estate of Montana Lance v. Lewisville Indep. Sch. Dist., No. 12-41139 (5th Cir. Feb. 28, 2014)

[Editor's Note: In August 2013, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) and the Texas Association of School Boards Legal Assistance Fund (TASBLAF), which includes the Texas Association of School Boards, the Texas Association of School Administrators, and the Texas Council of School Attorneys, filed an amicus brief in Lance v. LISD. The NSBA/TASBLAF brief, filed in support of the school district, asked the Fifth Circuit to affirm the decision of the federal district court.

In June 2013 Legal Clips reported on Long v. Murray Cnty. Sch. Dist., No. 12-13248 (11th Cir. Jun. 18. 2013), in which the Eleventh Circuit adopted the deliberate indifference standard in ruling that a Georgia district was not liable for suicide attributed to peer harassment.]

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