NSBA Legal Clips
Latest Entries

Former board member files suit seeking to end practice of Pennsylvania district paying salary of teacher released from teaching duties while serving as president of teachers union

The Morning Call reports that Scott Armstrong, a former member of the  Allentown School Board, has filed suit in a Pennsylvania Commonwealth Court seeking to end the long-held practice of releasing the union president from classroom duties while continuing to pay that person’s salary. Plaintiffs Armstrong and Allentown taxpayer Steven Ramos are being represented by The Fairness Center, a nonprofit public interest law firm.

The plaintiffs are requesting that the union reimburse the district, with interest, for salary, benefits and pension credits, which they say exceed $1.3 million since the practice began more than 25 years ago. The suit characterizes teachers union President Debbie Tretter, who has led the union since 2009, as a “ghost teacher.” Her salary is $81,608 this year. “That will be a significant savings to the taxpayers and the district if the court provides a remedy. …This legal action would not be necessary if the board would move to end the practice,” Armstrong said.

A similar case involving the Philadelphia School District teachers union and The Fairness Center has not yet been resolved. Jay Himes, executive director of the Pennsylvania Association of School Business Officials, called the Allentown case “uncharted legal territory.”

Allentown district solicitor John Freund said the Public School Employees’ Retirement Code requires the union to reimburse the district for salary and benefits when leave is given to someone to work full time as a union officer. The union currently does not reimburse the district. He also said it’s unclear if the reimbursement can be waived through the collective bargaining process for a contract. Since 1990, the Allentown union president has been released from teaching under the teachers contracts.

Freund also said there is no precedent for a case like this. “I believe this is likely a matter of first impression for the courts,” Freund said. “We will have to wait to see what happens.”

The lawsuit points to the district’s financial status in making a case against the practice. “The district has been in financial distress for many years,” the lawsuit states. “Yet despite its financial woes, since 1990 the district has somehow had enough money to pay the salary and benefits of an individual who doesn’t work for the district. …”

The Pennsylvania State Education Association, the state’s largest teachers union, said it stands by the practice. “For us, this is another nuisance suit filed by a right-wing group that exists to harass educators, so it’s important to consider the source,” spokesman David Broderic said. “[Tretter] spends her life serving kids.” Broderic didn’t have a number for how many union presidents in the state are released from teaching, but said he believes Allentown is not the only one. It’s typically more common in larger school districts, he said.

The Allentown district and teachers union are negotiating a contract. Last month, a fact-finding report done by a third party said the union president should still be released from classroom duties because of the size of the district. The district has 1,135 teachers and more than 16,000 students. The fact-finder’s report said Tretter needs to work full time as a union president to serve as an “instrument for resolution of disputes before they bloom as grievances, unfair labor practice charges, and complaints before various state and local education and fair employment agencies.”

Karin Sweigart, an attorney with The Fairness Center, is arguing that the practice of releasing a union president from teaching duties and remaining on district payroll violates the state Education Code. She said the Fairness Center took up this case because a taxpayer contacted the group. Sweigart cited the Arizona court case Cheatham v. Diciccio, in which two taxpayers challenged the Phoenix Law Enforcement Association for keeping the union president on payroll while that person was released from duties. In 2014, a judge ruled release time was unconstitutional.

Source: The Morning Call, 2/24/16, By Jacqueline Palochko

[Editor’s Note: In its press release announcing the suit, The Fairness Center states: Allentown School District, the third largest in the state, has consistently struggled financially. Since 2011, the district has laid off 272 teachers. Incredibly, during those layoffs, a classroom teacher lost a job so a ghost teacher could stay on the district’s payroll. In an insult to dedicated teachers, the union president accrues seniority over classroom teachers while skipping school to work for the union. The legal complaint makes four claims: (1) Full release time is void under the Pennsylvania Constitution; (2) Full release time is void because the parties lack capacity; (3) Full release time is void because the district bargained away its control over a public employee; and (4) Full release time violates public policy.

John Freund is a member of the NSBA’s Council of School Attorneys.]


Federal district court in Indiana rules that former student has stated valid equal protection and Title IX claims against district based on hazing on boys swim team

J.H. v. School Town of Munster, No. 12-69 (N.D.Ind. Feb. 3, 2016)

Abstract: A federal district court in Indiana has ruled that a former student stated a valid 42 U.S.C. § 1983 claim for violation of his equal protection rights, a valid claim for violation of his Title IX rights, and a valid state law claim of negligence ( the state law negligence claim is beyond the scope of this article). However, it rejected his Title IX claims of gender stereotyping, “sex-plus,” and class year, and his Title IX and First Amendment retaliation claims.

The court concluded that the former student had alleged sufficient facts to withstand a motion for summary judgment by the school district and the school officials in their individual capacities on the equal protection claim. In regard to the school district, it concluded the student had alleged facts showing the school district could be held liable based  upon the theory of municipal liability because the practice of hazing on the boys swim team was a well-settled practice or custom, and injury was cause by an individual with final decision making authority.

The court also found the individual defendants could be held liable for violating the student’s equal protection rights. It rejected their assertion of qualified immunity on the ground that the law was clearly established that the Equal Protection Clause applies to male and female students at the time the alleged hazing began.

The district court concluded that the same set of facts also sufficiently overlap to establish a gender discrimination claim under Title IX. However, it found that the Title IX  claim could only be maintained against the school district and not individual defendants.

Facts/Issues: J.H., a student at Munster High School, was a member of the boys swim team his freshman and sophomore years. During that time, he was subjected to a number of hazing incidents involving physical and emotional mistreatment. Some of the hazing took place at off-campus parties and some at school, including in the locker room.

After J.H. told his mother about the hazing, she met with Coach Pavlovich to alert him to what was happening at the off-campus parties. She claims Pavlovich brushed off the incident by saying “[i]t’s probably best if we don’t do anything about it at this point. It happened a year ago. A lot of those kids are gone.” He also told Ms. Hunt that “there were a lot of traditions already in place when [I] took over this team.”

Not satisfied with this response, Ms. Hunt then met with Athletic Director Smith on February 3, 2011. They discussed the hair-dyeing parties and Smith asked if J.H. was planning on attending the next hair-dyeing party. Ms. Hunt responded that he was not. According to Ms. Hunt, when she referred to what happened at the February 2010 party as hazing, Smith said, the “boys don’t look at it as hazing. They look [at it] as initiation.” Ms. Hunt also asked Smith to get the word out to other parents and swimmers about what happens at the pre-sectional parties. When J.H. failed to attend the 2011 hair-dyeing party, his teammates were not happy and he was verbally threatened for not attending.

Still not feeling like she was getting any traction with school officials, Ms. Hunt then emailed Coach Pavlovich and Athletic Director Smith with an article about the dangers of hazing on February 9, 2011. But just five days later, J.H. was violently attacked in the boys locker room after practice. According to J.H., some boys grabbed him, lifted him up, and carried him over to another boy who was holding electric hair clippers. J.H. resisted and eventually the boys dropped him to the cement floor, on his back. J.H. was able to run away from the boys before they attacked him any further. There were no coaches in the locker room at the time of the incident, as was typical at that time because coaches were rarely in the locker room after practice. He did not tell  his mother at the time of the incident.

J. H.’s mother subsequently met with Superintendent Pfister about hazing in the boys swimming program. When she told Pfister about what happened to J.H. at the February 2010 hair-dyeing party, his initial response was “[h]ey lady, your kid’s hair got cut” and that the school would not be getting involved because the incident occurred off campus.

Pfister did concede to Ms. Hunt that J.H. may have a valid complaint against the parents who hosted the party, but concluded that it wasn’t the school’s problem. Pfister did, however, order an investigation, but considered the matter closed once he learned it occurred off-campus. Both he and Tripenfeldas later admitted that some measure of discipline could have been taken.

Aside from the hair-dyeing incident, Tripenfeldas’ investigation didn’t reveal anything that he considered to be hazing. Tripenfeldas characterized what he discovered in the investigation as incidents of “pranks and horse play.” Because the hair-dyeing parties occurred off-campus, he and Pfister both considered the matter closed.

On May 23, 2011, Ms. Hunt submitted a formal written complaint regarding hazing on the boys swim team and met with Superintendent Pfister. That same day, J.H. told his mom that he was being verbally harassed and pushed around by some swim teammates. J.H.’s mom met with the dean of students about the issue, and he then interviewed J.H. alone. Although the dean at first seemed to think there wasn’t an issue to pursue, he later told Ms. Hunt that the issue had been addressed.

Communications between the school officials and J.H.’s mother really broke down after that point. Once Ms. Hunt learned what had happened to her son in the locker room in February 2011, she reported the incident to both the police and Tripenfeldas. She informed Tripenfeldas that she wanted to be present when he interviewed J.H. Tripenfeldas told her “we don’t have to do that.” After that she said she thought that she had a right to be there and that she had been consulting an attorney.

Tripenfeldas gave her the school attorney’s contact information and ended the discussion. It doesn’t appear there was much communication between Ms. Hunt and the school after that. In fact, when J.H. elected not to swim over the summer, his email address was removed from the team mailing list. J.H. decided not to return to swimming the following semester.

J.H. filed suit against the school district and various school officials in their individual and official capacities under § 1983 claiming discrimination based on gender under the Equal Protection Clause and Title IX; retaliation under the First Amendment; and a negligence claim under Indiana state law. Defendants now seek summary judgment on all claims.

Ruling/Rationale: The federal district court granted in part and denied in part the defendants’ motion for summary judgment. Before discussing the merits of J.H.’s claims, it dismissed all claims against the individual defendants in their official capacities because such claims were redundant of the claims against the school district. The court said “a claim against a school official in his official capacity is not a suit against the official but rather is a suit against the official’s office.”

The district court then took up discussion of the §1983 equal protection claim. According to the court, the essence of J.H.’s claim was that hazing was rampant in the boys swimming program, but not so in the girls swimming program. It stated that in order for J.H. to prove his equal protection claim, he “must offer evidence that demonstrates that (1) Munster acted with a discriminatory intent or deliberate indifference and (2) J.H. is a member of a protected class.”

The court found that J.H. easily satisfied the second prong, and, therefore, focused on whether the school district acted with discriminatory intent or deliberate indifference. It pointed out that school districts cannot be held liable under §1983 for the acts of employees or agents based on the theory of respondeat superior. However, they can be held liable based on the theory of municipal liability, if the plaintiff can show: “(1) an express policy that causes a constitutional deprivation when enforced; (2) a widespread practice that is so permanent and well-settled that it constitutes a custom or practice; or (3) an allegation that the constitutional injury was caused by a person with final policymaking authority.”

Based on the evidence presented by J.H., the court determined he was only arguing the second and third options. As to the second option, it found that J.H. was arguing that because school officials were willfully ignoring the hazing taking place on the boys team, it constituted a custom or practice. It said, “Such a policy of non-response — that is, ‘a deliberate refusal to respond to complaints of harassment’ — is actionable under the Equal Protection Clause.” The court pointed out that “J.H. must show that Munster engaged in a widespread practice of ignoring complaints of hazing from the boys’ swimming program, either intentionally or with deliberate indifference to the boys’ rights, simply because the complaints were coming from boys and not girls.”

The district court concluded that J.H. had presented sufficient evidence that would allow a jury to infer that the custom or practice of ignoring complaints of hazing existed at the school. In support of this conclusion, it laid out J.H.’s “laundry list of ways that the officials at the school ignored hazing in the boys program.” It found a reasonable jury could conclude from that list that school officials did not care if male swimmers were being harassed.

The court rejected the school district’s argument that there wasn’t enough evidence such a policy existed because there was a lack “information about what’s going on in the girls team to conclude there is any disparate treatment at play.” It pointed out that the school district had admitted it was unaware of any hazing on the girls team because of the absence of any complaints. As a result, the court said it believed that was “enough for the jury to at least infer that there was no hazing in the girl’s program.”

According to the district court:

[T]here is enough evidence for a reasonable jury to infer that Munster maintained a hazing-infested swim team for boys and not for girls because there was a widespread practice at Munster of ignoring hazing on the boys team. Munster can, and I’m sure will, present evidence aimed at rebutting that presumption at trial. And at that point, it’ll be up to the jury to decide what to do with it.

With regard to the equal protection claim against the school officials in their individual capacities, the court rejected their assertion of qualified immunity to the claim because it was clearly established that the Equal Protection Clause applies to male and female students at the time the alleged hazing began.

The district court next analyzed the gender discrimination claim under Title IX. While it conceded that the standard for proving discrimination under the Equal Protection Clause was not one in the same as that for Title IX, the court found “the proof required overlaps significantly.” It found that where school district  policy “alone suffices to establish an intent to discriminate, the usual four elements of a Title IX [action] are not wholly in play.”

However, the court found it was still in question whether “a plaintiff still needs to demonstrate that the harassment is severe and pervasive enough to deprive the plaintiff of educational opportunities, or whether the ‘intent’ is enough to show actual knowledge and/or deliberate indifference.” It concluded that “J.H. has also shown those elements, so his claim can proceed under either paradigm.”

The district court determined that “the same evidence supporting that the custom or practice existed, identified at length above, also supports deliberate indifference since the custom or practice was deliberate indifference.” It also pointed out that because “the basis of the claim is the school’s own policy, they obviously had actual knowledge of it (and in any event, as the evidence above shows, they had actual knowledge of the specific acts of hazing by at least the winter and spring of 2011).”

The court found that the only question not addressed for Title IX purposes was “whether the actions were severe and pervasive enough to deprive J.H. of educational opportunities.” It found J.H. had presented sufficient evidence of that element for summary judgment purposes. It stated:

J.H. has presented evidence that because of Defendant’s inaction regarding hazing on the boy’s swim team, he was forced to quit the swim team and graduate early, and that his grades declined. He also suffered psychological effects such as anxiety, depression, and suicidal thoughts, all requiring treatment. Evidence of this nature is generally found to be enough for showing sufficiently pervasive and severe discrimination.

As to the individual defendants, the court found that Title IX only applies to educational institutions, not individuals. It, therefore, dismissed the Title IX claim as to the individual defendants.

The court granted the defendants’ motion as to the Title IX claims of gender stereotyping, “sex-plus,” and class year, and his Title IX and First Amendment retaliation claims.

J.H. v. School Town of Munster, No. 12-69 (N.D.Ind. Feb. 3, 2016)

[Editor’s Note: Legal Clips summarized an article in the Eagle-Tribune reporting that a superior court judge had declined to strip suspensions from the school records of two freshmen disciplined in a hazing scandal involving Andover High School basketball players. In total, seven students were disciplined; two ringleaders were expelled; and five others were suspended from school and athletics. The punishments were handed down after it was revealed in November 2011 that two “newcomers” were forced to engage in one of three humiliating sexual tasks or risk severe beatings while the players were attending basketball camp in July. A school report said the hazing, which involved students eating cookies covered in semen, was video-recorded by a team captain using a Smartphone.]


North Carolina city enacts ordinance allowing transgender individuals to use restroom facilities of gender with which they identify

The Associated Press (AP) reports in the Seattle pi that the Charlotte, North Carolina city council has enacted a city ordinance that allows transgender people to use bathrooms based on the gender with which they identify, even if it’s different from their anatomy at birth. The ordinance was approved by a vote of 7-to-4, adding “sexual orientation,” ”gender identity” and “marital status” as attributes protected from discrimination when it comes to public accommodations in restaurants, retail stores and other businesses.

The ordinance doesn’t define gender identity, but federal workplace guidelines suggest that transgender people should be able to choose either the men’s room or the women’s room, depending on which feels most appropriate or safest to them. Violations could be treated as misdemeanors, punishable by fines of $500 or 30 days in jail, although the council staff noted that nobody has ever faced such punishment under other aspects of the city’s existing anti-discrimination ordinance.

The ordinance does not address accommodations in public schools, another flashpoint in the national debate. In South Dakota, transgender activists were trying to persuade the governor to veto a bill requiring students statewide to use bathrooms corresponding to their sex at birth.

However, North Carolina Gov. Pat McCrory expressed disapproval of the ordinance, saying that the bathroom provision denies privacy rights for people who expect to share restrooms or locker rooms only with people born with the same anatomy. “It’s an extreme regulation that changes the basic norms of society,” McCrory said, adding that he would like the state legislature to pre-empt any local governments from enforcing such ordinances. “I don’t want to have 100 different rules” across the state, he added.

According to Cathryn Oakley, an attorney with the Human Rights Campaign, most of the 20 largest U.S. cities now enforce state laws or local ordinances that include allowances for people to use the bathroom of the gender with which they identify.

North Carolina’s cities and counties are creations of the state, and the General Assembly can override local ordinances. House Speaker Tim Moore said that he and other Republicans will be “exploring legislative intervention to correct this radical course” once the legislature convenes again in late April.

Source: Seattle pi, 2/24/16, By Jonathan Drew and Gary D. Robertson

[Editor’s Note: In February 2016, Legal Clips summarized an AP article from CBS News reporting that the South Dakota Senate, in a 20-15 vote, passed a bill that would require transgender students to use bathrooms and locker rooms that correspond to their sex at birth. If  Gov. Dennis Daugaard signs the legislation, South Dakota will become the first state to enact such restrictions. Proponents of the bill argue that its intent is to protect the privacy of all students, but opponents say it discriminates against vulnerable adolescents.]


California districts raise concerns over federal court’s order allowing plaintiffs in suit involving special education students access to student data

School officials from a number of school districts in California are alarmed by a recent order from a federal district court judge allowing plaintiffs in a lawsuit access to data derived from the demographic and personal information of California public school students dating back to 2008, says the Los Angeles Times. The Morgan Hill Concerned Parents Association (MHCPA) and California Concerned Parents Association (CCPA) filed a joint lawsuit in 2012 alleging that the California Department of Education was failing to monitor and enforce the rights of children with special needs. The groups requested the records of all public school students for a statistical analysis to see if it will prove their claim.

After District Court Judge Kimberly Mueller issued the order, Newport-Mesa Unified School District (NMUSD) notified parents about how they can request that their children’s information, including Social Security numbers, home addresses and behavior and disciplinary records, not be disclosed. Although no specific school districts are named in the lawsuit, parents and school officials cited the importance of protecting personal information. Laguna Beach Unified School District Supt. Sherine Smith said that she was “dismayed” by the ruling. “We believe it is crucial to protect student data privacy,” Smith said. “This ruling is counterproductive and against the best interests of our students.”

As part of Mueller’s order, the parent groups must either return or destroy the data once a decision or settlement in the lawsuit is reached. The court retained an expert in cyber security and data breaches to try to ensure that representatives of the parent groups – fewer than 10 people – who have access to students’ data will not leak it to the public, according to CCPA. The information the groups say they hope to derive relates to students who identify as having a disability, whether they are in special or general education classes and services they may be using or are available to them.

For example, MHCPA/CCPA are to determine whether African-American students identified as intellectually disabled were disproportionately in special day classes as opposed to general education classes, or whether children diagnosed with behavioral issues had a behavioral management plan in place. CCPA vice president Christine English said, “Thinking of the bigger picture of our case, it’s large pieces of data that are being looked at, not individual data.” She also pointed out, “We’re not asking to look at individual information, but the derivative, aggregated data.”

State Supt. of Public Instruction Tom Torlakson said that “we have fought vigorously to protect students’ privacy rights and will continue that fight.” Parents, guardians and current and former students 18 and older can submit a form objecting to the release of their or their children’s records. NMUSD  plans to call all district parents and guardians Monday to further inform them about the judge’s order and about the objection forms.

Source: Los Angeles Times, 2/22/16, By Alex Chan and Bryce Alderton

[Editor’s Note: In September 2014, Legal Clips summarized an article in the Newark Advocate reporting that the Ohio Department of Education (ODE) was releasing data on students with disabilities. The data is normally confidential data, but a judge ordered its release as the result of a class action lawsuit brought by Disability Rights Ohio (DRO) challenging the adequacy of special education funding. The data will only be released to DRO and the court has ordered it not to publish or disseminate the information.]



States’ legislative efforts restricting transgender students’ restroom/locker room access are pushing back in response to U.S. Dep’t of Ed.’s interpretation of Title IX as applicable to transgender students

Although a number of local school districts have yielded to the U.S. Department of Education (ED) Office for Civil Rights’ (OCR) interpretation of Title IX as applying to transgender students in part out of fear of federal investigations that could cost them millions in funding, reports the Associated Press (AP) on ABC News, some state legislatures have begun pushing back on OCR’s reading of Title IX. South Dakota recently passed legislation, the first in the nation,  that would require transgender children and teenagers to use the school facilities that correspond to their “chromosomes and anatomy” at birth.

While the federal courts are still considering the issue, with none having validated OCR’s reasoning, the statehouse-level defiance could test the limits of OCR’s advocacy on transgender rights. In 2013, ED and the U.S. Department of Justice (DOJ) determined that transgender students were entitled to federal civil rights protections under its reading of Title IX. The analysis arose from a complaint by a transgender middle school student against a Southern California school district, which agreed to settle the case by updating its policies.

Since then, ED has reaffirmed its position in memos advising school districts of their responsibilities under Title IX and in other complaint resolutions. The most recent was reached in December 2015 with a suburban Chicago school district that agreed to allow a transgender high-schooler access to the girl’s locker room once private stalls were installed. “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation,” OCR stated in a 2014 memo on sexual violence.

The courts so far have been less accommodating. A federal judge last year dismissed a lawsuit brought by a transgender student at the University of Pittsburgh who was expelled for using the men’s locker rooms and bathrooms. A federal judge in Virginia also rebuffed a transgender teenager’s request for an order requiring his high school to allow him to use the boys’ restrooms. Both decisions have been appealed.

Jennifer Smith, an education lawyer in Chicago who represents a number of Illinois school districts, said the lack of legal clarity has left her clients unsure of how to craft compliant and thoughtful policies. “They look at the Pittsburgh case, they look at what OCR has said, they look at state and local laws, and it’s really gray. No one knows what to make of it,” Smith said. “We are making as practical decisions as we can in a really unsettled area of law.”

Source: ABC News, 2/22/16, By Lisa Leff (AP)

[Editor’s Note:  Jennifer Smith is a member of the NSBA’s Council on School Attorneys.

In February 2016, Legal Clips summarized an AP article from CBS News reporting that the South Dakota Senate, in 20-15 vote, passed a bill that would require transgender students to use bathrooms and locker rooms that correspond to their sex at birth. If  Gov. Dennis Daugaard signs the legislation, South Dakota will become the first state to enact such restrictions. Proponents of the bill argue its intent is to protect the privacy of all students, but opponents say it discriminates against vulnerable adolescents.]

Seventh Circuit panel rules that Illinois district did not violate former principal’s rights under ADEA when it decided not to renew his contract

Bordelon v. Board of Educ. of the City of Chicago, No. 14-3240 (7th Cir. Feb. 3, 2016)

Abstract: A U.S. Court of Appeals for the Seventh Circuit three-judge panel has ruled that a former principal failed to prove that a local school council’s decision not to renew his contract violated his rights under the Age Discrimination in Employment Act (ADEA). The panel concluded that the former principal, who used the direct method of proving his ADEA claim, had failed to present sufficient evidence, either of a direct or circumstantial nature, to demonstrate discriminatory motivation based on age for nonrenewal of his employment contract.

Facts/Issues: Lionel Bordelon was  the principal of Kozminski Community Academy (KCA) for several years. After Judith Coates was hired in 2009 as Chief Area Officer for Area 15, she became Bordelon’s immediate supervisor. Coates inherited a list of principals, including Bordelon, whose schools were performing in the bottom of Area 15 schools. Bordelon, as well as several other principals on the list, was African-American and over forty (40) years of age.

In November 2010, Coates turned her attention toward removing Bordelon. Coates sent Bordelon notice of a pre‐disciplinary hearing based on insubordination from September through November 2010. The notice contained the following allegations: (1) failing to respond to a parent issue raised on November 2; (2) failing to comply with a request from September 20 to set up a parent meeting in October; (3) failing to schedule a meeting requested in an October 25 email regarding the arrest of several Kozminski students; and (4) failing to respond to Coates’s email from November 4 regarding resolution of the three aforementioned matters.

As a result of his hearing, Bordelon received a five‐day suspension without pay, which he appealed and never served. In December 2010, Coates issued an evaluation of Bordelon that indicated that he “needs improvement,” noting that KCA was on academic probation for the second year in a row with test scores trending downward. Also in December, the Local School Council (LCA), responsible for KCA’s operations, held a meeting, which only five of the nine members attended. At this meeting, LCA member Everhart testified that Coates “more or less suggested … [t]hat it was time for [Bordelon] to give it up.” Everhart clarified, however, that he thought Coates was not referring to Bordelon’s age but to Kozminski’s declining test scores.

Coates reassigned Bordelon to home with full pay pending the outcome of an investigation into the following misconduct: (1) improperly replacing asbestos‐containing tile at Kozminski; (2) purchasing irregularities; and (3) tampering with school computers in a manner that impeded access to Kozminski’s records by the Board.

In January 2011, while Bordelon was still suspended with pay, LCA voted not to renew his contract. In February 2011, Bordelon submitted his notice of retirement effective June 30, 2011, the end of his non‐ renewed contract.

In November 2011, Bordelon filed suit against the City of Chicago Board of Education (CCBOE) alleging: (1) discrimination on the basis of age in violation of ADEA; (2) discrimination on the basis of race in violation of Title VII; (3) retaliation in violation of Title VII; (4) constructive discharge; and (5) deprivation of due process. CCBOE moved for summary judgment on all of Bordelon’s claims, which the district court granted. With respect to Bordelon’s age discrimination claim, the district court found that the evidence Bordelon claimed was direct proof of age discrimination “do[es] not support a finding of discriminatory intent.”

Bordelon then filed a motion for reconsideration in which he pointed to more evidence that he thought supported his age discrimination claim. The district court excluded the additional evidence as inadmissible hearsay, lacking foundation, or too conclusory to withstand summary judgment.

Bordelon’s appeal was limited to the age discrimination claim.

Ruling/Rationale: The Seventh Circuit panel affirmed the district court’s grant of summary judgment to CCBOE. It pointed out that in order to defeat CCBOE’s motion for summary judgement, Bordelon must present evidence that could lead the trier of fact to conclude: (1) Coates harbored discriminatory animus based on his age and (2) gave the Council information that influenced its decision not to renew his contract.

In an effort to satisfy those two elements, Bordelon utilized the direct method of proof, which allowed him to provide either direct or circumstantial evidence to show discriminatory motivation based on age. The panel concluded that the circumstantial evidence presented by Bordelon was insufficient to overcome CCBOE’s motion for summary judgment. It rejected Bordelon’s argument that Everhart’s testimony that Coates “more or less suggested … [t]hat it was time for [Bordelon] to give it up”  was an “ambiguous statement … towards other employees in the protected group” constituting  circumstantial evidence of intentional discrimination.

The panel likewise found that the list of principals did “not support an inference of intentional discrimination based on age.” It also rejected Bordelon’s contention that testimony from Coates’ former executive administrative assistant that Coates preferred younger employees was circumstantial proof that Coates was motivated by age discrimination. The panel said, “Her impression that Coates wanted someone younger, without more, does not give rise to an inference of intentional discrimination.”

The panel agreed with the district court in regard to the evidence that the lower court had excluded. It pointed out: “Assuming arguendo that Bordelon had not waived these arguments, the district court did not abuse its discretion in excluding this evidence, nor does the evidence to which he directs us give rise to an inference of discriminatory motivation sufficient to withstand summary judgment.”

According to the panel:

In conclusion, Bordelon has not constructed “a convincing mosaic of circumstantial evidence that [would] allow[] a jury to infer intentional discrimination by the decisionmaker.” Therefore, the district court properly granted summary judgment in favor of the Board.

Lastly, the panel found that Bodelon’s attempt to maintain his suit against CCBOE based on the LCA’s decision not to renew his contract, was fatally flawed because he could not demonstrate the cat’s paw theory of liability. It pointed out that because Coates and CCBOE were not decisionmakers, Bordelon was required to show that Coates bore a discriminatory animus that influenced LCA. It found “Bordelon did not point to evidence ‘that the biased subordinate actually harbored discriminatory animus against the victim of the subject employment action,’ so the cat’s paw theory of liability cannot save his case from summary judgment.”

Bordelon v. Board of Educ. of the City of Chicago, No. 14-3240 (7th Cir. Feb. 3, 2016)

[Editor’s Note: In February 2016, Legal Clips published a Sua Sponte item announcing filing of an amicus brief in City of Houston v. Zamora, No. 15-868, on February 8, 2016. NSBA joined with the International Municipal Lawyers Association (IMLA) urging the Supreme Court to reverse the U.S. Court of Appeals for the Fifth Circuit’s adoption of the “cat’s paw” theory of liability in Title VII cases. The IMLA/NSBA brief makes two arguments: First, the rule of liability adopted by the Fifth Circuit is contrary to the Supreme Court’s decisions in Staub v. Proctor Hospital, 562 U.S. 411 (2011) and Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013). Second, the Fifth Circuit’s rule needlessly exposes public employers like amici’s members to expansive liability and undermines internal review processes designed to protect employees and the public alike.]

Arizona approves bill that would open state’s private school voucher program to all students

According to an Associated Press (AP) report in the Arizona Daily Sun, the Arizona Senate, in a 17-13 vote, approved the expansion of a school voucher program that will allow every public school student to use state cash to attend a private school by 2020. Senate Bill 1279 (SB 1279) is the most recent expansion of the state’s Empowerment Scholarship Account program (ESA) enacted in 2011. The proposed legislation adds all public students over three years while maintaining existing enrollment caps. However, the cap will be eliminated in 2020, allowing all 1.1 million public school students to get a voucher.

Supporters of ESA contend that current limits make it too hard to get a voucher. Opponents say expansion would rob the public school system of funds and questioned how the state could avoid paying tuition for private school students. Proponents of SB 1279 insist the legislation said it expands school choice while keeping in place the current cap. “It’s a huge step forward for school choice for our parents and students throughout this state,” said Sen. Debbie Lesko. She noted that a cap of about 5,000 students remains in place and opponents’ concerns that it would hurt public schools was wrong because the voucher programs pay less than public schools receive in government funding.

Opponents point out that the cap expires after 2019 and that the program that began to service just disabled children has expanded repeatedly since then.  Sen. Martin Quezada said school choice proponents were abandoning the vast majority of parents who choose public schools.”School choice sounds like a great thing, school choice on paper sounds great,” Quezada said. “The reality is that school choice is not what it seems … the reality is that the overwhelming majority of parents are choosing their public school.”

Source: Arizona Daily Sun, 2/22/16, By Bob Christie (AP)

[Editor’s Note: In October 2013, Legal Clips summarized a decision by the Arizona Court of Appeals, Division One, in Niehaus v. Huppenthal holding that the Arizona Empowerment Scholarship Accounts program (ESA) does not violate the state constitution’s Religion Clause or its Aid Clause. It also concluded that the ESA does not unconstitutionally condition receipt of a governmental benefit on the waiver of a state constitutional right to public education.

In June 2015, Legal Clips summarized an article in The Christian Science Monitor reporting that Nevada Gov. Brian Sandoval had signed into law legislation that allows virtually all parents of K-12 students to opt out of public school and use their children’s state education dollars for a customized education, including private or religious schooling, online classes, textbooks, and dual-enrollment college credits. The state funds go into an education savings account (ESA), and dollars not spent by the parent in a given year roll over for future spending – until the student finishes high school or opts back into public school.]

State court dismisses suit challenging Virginia district’s revised non-discrimination policy prohibiting discrimination based on gender identity, gender expression and sexual orientation

The Washington Post reports that the Fairfax County Circuit Court has dismissed a suit brought by Andrea Lafferty, the head of the conservative Traditional Values Coalition, and an unnamed student against Fairfax County Public Schools (FCPS) seeking to overturn a FCPS policy providing protections for gay and transgender students. The lawsuit alleged that FCPS’ board overstepped its authority when it changed its policies to ban discrimination against gay and transgender students and staff because state law does not include such protections.

School Board Chairman Pat Hynes said, “We’re very pleased with the Circuit Court of Fairfax County’s decision today to dismiss the lawsuit brought against the School Board by Ms. Lafferty and the other plaintiffs.” Hynes added, “The School Board remains committed to ensuring that all of our students and employees are treated fairly and with dignity and respect.”

Lafferty said she planned to appeal the dismissal, but referred further comment on the matter to her lawyer, Mat Staver of the Liberty Counsel, which represents the student and Lafferty. According to Staver the judge dismissed the suit because he concluded that plaintiffs lacked standing to bring the suit. Staver said Liberty Counsel plans to appeal the case.

The Fairfax County School Board voted to change its nondiscrimination policy to include gay students and staff in December 2014. Six months later, the board expanded the policy to bar discrimination based on “gender identity” despite vocal opposition from Lafferty and some parents in the district.

Source: The Washington Post, 2/19/16, By Moriah Balingit

[Editor’s Note: In January 2016, Legal Clips summarized an article in Courthouse News Service reporting that Fairfax County resident Andrea Lafferty, president of the Traditional Values Coalition, and a student, identified as Jack Doe, had filed suit against the Fairfax County School Board (FCSB) challenging the board’s revised non-discrimination policy. The amended policy prohibits discrimination based on gender identity, gender expression and sexual orientation. The suit alleged that the policy will cause student confusion, raise privacy and safety issues, and affect both student-to-student and student-teacher relations. It states, “Inserting undefined terms into the student handbook and thereby subjecting students to discipline without proper notice of the conduct for which they can be suspended exceeds Defendant’s authority under Virginia law.”

In Liberty Counsel’s press release announcing dismissal of the suit, Staver said, “Civil rights are coded in Virginia law. In changing the nondiscrimination laws, the school board acted recklessly and unlawfully.” He continued, “The strength of America’s foundation is that no school may disregard our laws. Just as a board may not remove ‘race’ or ‘religion’ from its nondiscrimination clause, it cannot add groups that are not recognized by the Virginia Legislature.” ] 

West Virginia Senate approves “Tebow” bill allowing home-schooled students to participate in interscholastic sports

The Charleston Gazette-Mail reports that in a 25-8 vote, the West Virginia Senate has passed legislation that would allow home-schooled students and students at private schools unaffiliated with the West Virginia Secondary School Activities Commission  to join sports teams and take part in other extracurricular activities at middle and high schools. The proposed legislation is known as a “Tim Tebow” bill. Supporters of the bill argue that it will eliminate discrimination against home-schooled students.

Opponents of the bill argue that home-schooled students could displace public school students on sports teams that have smaller rosters, like basketball teams. Similar legislation in other states also has sparked complaints about unfair recruiting practices. Under the West Virginia bill, students at private schools that don’t offer certain sports could also play for SSAC-sanctioned schools that do.

Tebow, a former home-schooled student who played for private and public schools in Florida, won the Heisman Trophy as a quarterback for the University of Florida. According to the bill named after him, home-schooled students would have to meet academic standards — by showing a portfolio of work or by scoring in the 25th percentile on a standardized exam — in order to join public school sports teams. Students would also have to adhere to codes of conduct to stay eligible.

The bill  gives SSAC-member private schools the option of accepting home-schooled students. About 30 states allow homeschoolers to take part in public school athletics.

Source: Charleston Gazette-Mail, 2/17/16, By Eric Eyre

[Editor’s Note: In February 2015, Legal Clips summarized an article in the Richmond Times-Dispatch reporting that the Virginia Senate, on a 22-13 vote, approved an amended version of House Bill 1626 that would give local school districts the option of allowing home-schooled students to participate in public school athletics and other school-sponsored activities. The legislation known as the “Tebow Bill”  is nicknamed for Tim Tebow, who was home-schooled before he became a Heisman Trophy-winning quarterback at the University of Florida.] 

California district settles lawsuit brought by student over banning of t-shirt that proclaimed her sexual orientation

According to an Associated Press (AP) report in The Orange County Register, Manteca Unified School District (MUSD) has settled a suit brought by Taylor Victor, a student at Sierra High School (SHS), alleging SHS officials violated Victor’s free speech by prohibiting her  from wearing a t-shirt at school captioned “Nobody Knows I’m a Lesbian.” MUSD has agreed to adopt a policy clarifying that students may wear clothing with statements celebrating their or their classmates’ cultural identities.

Victor and her mother, who were represented by the American Civil Liberties Union of Northern California (ACLU-NoCal), sued two SHS administrators who told the girl in August 2015 that her shirt was an improper display of sexuality that violated the school’s dress code and might be disruptive. “The law on this is very clear: public schools can’t censor the personal beliefs of students,” ACLU-NoCal attorney Linnea Nelson said. “The message of Taylor’s T-shirt expresses the most fundamental type of speech already protected by the First Amendment, the California Constitution and the California education code.” Under the terms of the settlement, SHS officials deny violating Victor’s free speech rights and they and MUSD deny any wrongdoing.

Federal courts have allowed some limits on student speech. The U.S. Supreme Court ruled in 2007 that an Alaska school acted within its discretion to discourage illegal drug use when it suspended a student who displayed a banner reading “Bong Hits 4 Jesus” at an Olympic torch relay. In 2014, the Ninth U.S. Circuit Court of Appeals, which has California within its jurisdiction, ruled that administrators at a Northern California high school plagued by racial strife lawfully banned T-shirts bearing the American flag while the campus commemorated “Mexican Heritage Day.”

Source: The Orange County Register, 2/17/16, By Lisa Leff (AP)

[Editor’s Note: In October 2015, Legal Clips summarized an article in Courthouse News Service reporting that a suit filed by a student, identified as T.V., and her mother, Heather Victor, alleged that two assistant principals at Sierra High School (SHS) sent T.V. home for wearing a t-shirt displaying the message “Nobody knows I’m a lesbian.”

In September 2014, Legal Clips summarized a decision by the U.S. Court of Appeals for the Ninth Circuit, sitting en banc (all active judges in the circuit participating), in Dariano v. Morgan Hill Unified Sch. Dist. denying the petition for a panel rehearing and rehearing en banc, and ordering that no further petitions be permitted. The three-judge panel issued an opinion amending its opinion filed on February 27, 2014. The panel held that school officials had not violated students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo because such displays might provoke ethnic based violence.]

Page 34 of 303« First...1020...3233343536...405060...Last »



Copyright © National School Boards Association. All rights reserved.
1680 Duke Street, Alexandria, VA 22314
Phone: (703) 838-6722 Fax: (703) 683-7590 E-mail: info@nsba.org

RSS Feed.