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$2.8 million verdict to father for elementary school’s release of child to non-parent

A federal district court jury has awarded the father of an elementary school student, who was released to an unauthorized person, $2.8 million in damages, says The San Diego Union-Times.  The jury held that the Escondido Union School District (EUSD) was responsible for allowing the student to be released from school to a non-parent and kidnapped to Mexico.  The lawsuit centered on the issue of who is authorized to pick up children from school, and how closely those policies are followed, especially when dealing with splintered families and complicated parent work schedules.

When Enrique’s mother, Claudia Cano, was deported in November 2010, the boy went to live with his father, according to the lawsuit.  Cano notified the school that she’d been deported.  On the morning of  December 6, 2010, Manuel Ramirez dropped off his son at Farr Elementary School (FES).  That day, a person identifying herself as Cano called the school and spoke with the office manager, Graciela Mineroa Murguia.  She said Enrique had a doctor’s appointment in 15 minutes but was unable to get out of work to take him.  She told the manager that she was instead sending her boyfriend to pick him up. The manager said she checked and saw that the boyfriend was not listed on the boy’s “emergency card” as an authorized person for pickup.  But Murguia wrote down his name and said the boyfriend could do the pickup as long as he showed identification.  A school clerk was staffing the desk when the boyfriend showed up, and she let Enrique go with him upon checking the ID, according to court records.  Enrique appeared to recognize the boyfriend, calling him by his nickname, and looked “happy to see him,” according to the school district’s trial brief.  When Ramirez returned later that day to pick up Enrique, only his backpack was in the classroom.  Enrique, a U.S. citizen,  is believed to be living in Mexico with his mother, Claudia Cano.

The lynch pin of the suit was the school’s policy, which states: “If a student needs to be dismissed during the day, the school will only let him or her be signed out by someone who is listed on the emergency card,” and again, “We will not release your child to anyone not listed on the emergency card.”  The district argued that the policy does not prohibit a parent’s verbal authorization.

Ramirez’s suit, which was also filed on behalf of Enrique, named EUSD and FES’s principal and office manager as defendants.  The suit claimed deprivation of father-son contact, negligence and intentional infliction of emotional distress.  After a five-day trial and two days of deliberation, the jury awarded the father $2 million and his son $850,000.  The principal, Angel Gotay, was also ordered to pay punitive damages of $3,500, and the office manager $2.

EUSD’s attorney,  Daniel Shinoff, expressed disappointment with the jury’s verdict, and stated he planned to recommend the decision be appealed for a number of reasons.

According to Ken Trump, president of National School Safety and Security Services, family custody issues, rather than random gun violence, are “without a doubt” the biggest threat facing elementary schools on a day-to-day basis. “These things are so complex. … Maintaining that chain of custody of the child is critical.  Unfortunately, one mistake can be a matter of life or death,” said Trump.  “Because of that, school secretaries and principals are typically extremely vigilant about maintaining the letter of the law, and it often comes down to what legal orders they have on file.”

Source: The San Diego Union-Times, 10/3/13, By Kristana Davis

[Editor's Note: In its February 2012 order denying EUSD et al's motion to dismiss Ramirez's suit, the federal district court stated that the federal constitutional right at issue, i.e., the substantive due process right to family integrity or to familial association, "is well established."  The court held that the plaintiffs had met their burden on a substantive due process claim of showing that the defendants' conduct "shock[ed] the conscience or offend[ed] the community’s sense of fair play and decency.”

In a case with similar issues, Doe v. Covington Cnty. Sch. Dist., the plaintiff  unsuccessfully argued that the school district was liable for violating her substantive due process rights based on the special relationship exception enunciated in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), to the well-settled rule that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”  In March 2013, Legal Clips summarized the decision in Covington by a divided U.S. Court of Appeals for the Fifth Circuit.

Ramirez’s theory of liability appears to have taken a page from the concurring opinion in Covington, which states: “If the complaint had asserted that the affirmative act of releasing Jane [the student] to Keyes [the unauthorized person] was a causal act of recklessness or deliberate indifference or intentionality that caused her to be subjected to injury, and specifically to the deprivation of her right to bodily integrity, the complaint properly would proceed through discovery to trial.”]

Arizona Court of Appeals upholds private school scholarship program for disabled students

Niehaus v. Huppernthal, No. 12-042 (Ariz. App. Ct., Div. One Oct. 1, 2013)

Abstract: The Arizona Court of Appeals, Division One, has ruled 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.

Facts/Issues: In 2011, the Arizona Legislature passed SB 1553, a scholarship program known as the “Arizona Empowerment Scholarship Accounts” (ESA). SB 1533 authorized the Arizona Department of Education (ADE) to disburse public funds as scholarships.  These scholarships provide educational options for qualified students with a disability, including the payment of tuition and fees at private secular and sectarian schools.  The parent of a scholarship student must agree to release the school district from all obligations to educate the student.  The scholarships are 90% of what ADE would pay a public school educating the student.

The plaintiffs filed a motion seeking to enjoin the ADE from disbursing S.B. 1553 scholarships, alleging that the disbursement of money violates Article 9, Section 10 (the Aid Clause) and Article 2, Section 12 (the Religion Clause) of the Arizona Constitution.  The Maricopa County Superior Court denied the plaintiffs’ motion.

The Superior Court distinguished SB 1553 from the voucher program struck down by the Arizona Supreme Court in Cain v Horne (“Cain II”), 202 P3d 1178 (Ariz. 2009), noting that under SB 1553, scholarship funds “are held in an account which allows parents to make educational choices and draw from the account for various services and to different entities.”  “The exercise of parental choice among education options makes the program constitutional,” explained the court.  The Superior Court also dismissed Niehaus’s claim that the ESA places an unconstitutional condition on the receipt of a government benefit.

Ruling/Rationale:  The Arizona Court of Appeals, Division One, affirmed the Superior Court’s decision.

The religion clause of the Arizona Constitution states: “[n]o public money . . . shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”  Art. 2, Sect. 12. The court concluded that the ESA did not violate the religion clause because the ESA program is neutral toward religion and directs aid irrespective of religious affiliation:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion.  Any aid to religious schools would be a result of the genuine and independent private choices of the parents.  The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs….The ESA is a system of private choice that does not have the effect of advancing religion.  Where ESA funds are spent depends solely upon how parents choose to educate their children.  Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school.

The court also rejected the plaintiffs’ Aid Clause argument.  Article 9, Section 10 of the Arizona Constitution, referred to as the “Aid Clause,” provides that “[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.”  The court interpreted the provision to prohibit “the appropriation of public money to private or sectarian schools” and proceeded to determine that an “appropriation” under Arizona law means sums set aside for a “specified object.”  Concluding that the “specified objects” under the ESA are the families receiving the scholarship funds, and not the sectarian schools where the students enroll, the court found no violation of the Aid Clause.  The court emphasized that recipients of the scholarship monies have discretion as to how to spend the ESA funds and do not have to spend any of the aid at a sectarian school.  Interestingly, the court began its analysis by noting that the Arizona Supreme Court has said that the Aid Clause is “primarily designed to protect the public fisc and to protect public schools.”  Cain v. Horne (Cain II), 220 Ariz. 77, 82, 202 P.3d 1178 , 1183 (2009).

The appellate court distinguished Cain v. Horne (Cain II), 220 Ariz. 77,  202 P.3d 1178  (2009), in which Arizona’s Supreme Court struck down the legislature’s previous attempt at a voucher program.  Under that law, state funds were issued by check to a parent who had selected a private school, and the parent was required to restrictively endorse the check to the private school.  Interpreting Cain II, the Neihaus appellate court said the voucher program was struck down “because, essentially, the voucher programs transferred state funds directly from the state treasury to private schools….In the programs disapproved in Cain II, the state was paying money directly to the institutions; although the payment first went to parents, they then went ineluctably to private schools.”  The appellate court found that the holding in Cain II did not render the ESA program unconstitutional because “unlike in Cain II, in which every dollar of the voucher program was earmarked for private schools, none of the ESA funds are preordained for a particular destination.”

The appellate court further rejected the appellants’ claim that the ESA “unconstitutionally conditions receipt of a government benefit on the waiver of a constitutional right because it requires that the parent of a qualified student promise not to enroll the student in public school.”  The appellants’ argument was based on Article 11, Section 6 of the Arizona Constitution, which requires the legislature to provide a free public education to pupils between six and twenty-one.  The appellate court pointed out that the program does not require a permanent or irrevocable forfeiture of the right to a free public education. According to the court, the ESA only requires that students participating in the program not be simultaneously enrolled in public school.  It noted that the same requirement applied to students attending private schools or being home schooled.

The appellate court also pointed out that the both the Arizona and the federal Individuals with Disabilities Education Act obligate public schools to accept students who have terminated ESA contracts.  In addition, it pointed out that parents are not coerced into participating in the ESA.  “Parents are free to enroll their children in the public school or to participate in the ESA; the fact that they cannot do both at the same time does not amount to a waiver of their constitutional rights or coercion by the state.”  The appellate court emphasized that “the ESA does not limit the choices extended to families but expands the options to meet the individual needs of children.”

Niehaus v. Huppernthal, No. 12-042 (Ariz. App. Ct., Div. One Oct. 1, 2013)

[Editor's Note: In February 2012, Legal Clips summarized the Maricopa County Superior Court's decision in Niehaus v. Huppenthal upholding the ESA program.  NSBA filed an amicus brief with the Arizona Court of Appeals, Division One, supporting the constitutional challenge to the ESA.]

D.C. Public Schools and OCR enter into agreement to resolve Title IX complaint

D.C. Schools Chancellor Kaya Henderson has signed an agreement with the U.S. Education Department’s Office for Civil Rights (OCR), reports The Washington Post, that will provide girls with the same athletic opportunities as boys.  The agreement settles one of two complaints charging that the school system’s sports programs systematically discriminate against girls, in violation of the federal Title IX law.

If D.C. Schools fails to meet a series of deadlines, OCR may refer the school system to the U.S. Department of Justice for legal action.  Melissa Salmanowitz, a schools spokeswoman, said the settlement “does not constitute a finding of fault on the part of District but does define a framework which will work to benefit both our male and female student athletes.”

Herb Dempsey, a retired educator, who filed the complaint in May 2012, said, “When it comes to Title IX, schools in D.C. are about as bad as I’d ever care to see.”  A second Title IX complaint filed by the National Women’s Law Center (NWLC) is currently being investigated. “This is a good first step, but D.C. has a long way to go to make sure it’s giving girls a fair shot at playing sports,” said Neena Chaudhry, NWLC’s  legal counsel.  “Our complaint also found inequities in coaching and facilities that this settlement didn’t address.”

Under the terms of the agreement, D.C. schools will now be held to tight deadlines to begin collecting better information about girls’ participation in sports and reporting it to OCR by July 1 every year that the settlement is monitored.  The District has also agreed to expand team rosters if girls’ interest is high in sports now offered.  In addition, the agreement requires the school system to “take ongoing steps to develop students’ interest and ability,” by creating sports clubs or allowing female student athletes to compete for other schools.

Source: The Washington Post, 10/1/13, By Brigid Schulte

[Editor's Note: The OCR agreement states: "[T]he complaint included an allegation that DCPS subjects high school girls to discrimination on the basis of sex because the selection of interscholastic sports at DCPS ‘s high schools does not effectively accommodate the interests and abilities of members of both sexes to the extent necessary to provide equal athletic opportunity.”

In July 2012, Legal Clips summarized an article on Educationnews.com reporting that OCR had reached agreements with four school districts to ensure that girls get equal athletic opportunities as male students.  The four districts are Wake County Public Schools in Raleigh, North Carolina; Deer Valley Unified School District in Phoenix, Arizona; Columbus City Schools in Columbus, Ohio; and the Houston Independent School District in Houston, Texas.  These agreements represent resolutions to some of the 12 complaints filed by NWLC, which alleged that these districts were discriminating against female students in violation of Title IX.]

Louisiana voucher program increases integration reports state sponsored study

The Times-Picayune reports that a study by EducationNext concludes that Louisiana’s voucher program has in some cases improved the racial balance in both the schools the voucher participants left and the ones they entered. The study’s authors, Anna Egalite and Jonathan Mills, assert: “The statewide school voucher program appears to have brought greater integration to Louisiana’s public schools.”  The study examined 841 children, about 17 percent of the roughly 4,950 students who used vouchers in the 2012-13 school year.

The authors’ conclusion stands in direct contradiction to the claims made by the U.S. Justice Department (DOJ) in its lawsuit to prevent implementation of the voucher program on the grounds that the program has increased segregation in 13 of the 34 state school systems that are under long-standing desegregation orders.

The study determined that voucher transfers did not affect the racial balance of the receiving private school.  It found that in the districts under desegregation orders, voucher transfers improved integration both in the public schools the students left and in the private schools they entered.  “It would appear that the voucher program is … beneficial for school integration in the very districts that are the subject of the Department of Justice litigation,” Egalite and Mills conclude.

The study comes out of the University of Arkansas School Choice Demonstration Project.  The university has a memorandum of understanding with the Louisiana Education Department to analyze and evaluate the scholarship program.  Egalite said the agreement was signed in January and no money changes hands.

Source: The Times-Picayune, 10/2/13, By Danielle Dreilinger

[Editor's Note: In the study's section titled "Implications," the authors state: "For African American students, who constitute the majority of voucher recipients, approximately 90 percent of Louisiana Scholarship Program (LSP) transfers improve integration for sending schools in both the overall sample and the subset of transfers in districts under desegregation orders.  Based on this evidence, we conclude that the LSP is unlikely to have harmed desegregation efforts in Louisiana.  To the contrary, the statewide school voucher program appears to have brought greater integration to Louisiana’s public schools."

In August 2013, Legal Clips summarized an article in The Times-Picayune reporting on DOJ's suit against the State of Louisiana to prevent the implementation of the state’s private school voucher program at public schools currently under federal desgregation orders.  DOJ claims that during the first year of its operation the program has “impeded the desegregation process.”]

Michigan considering legislation requiring schools to stock Epipens

According to an Associated Press (AP) report on CBS Detroit, the Michigan legislature is considering requiring schools to have epinephrine devices (EpiPens) available to treat life-threatening allergic reactions.  Two bills are currently advancing in the State House that would require schools to have two EpiPens, and to train one or two employees to administer the medicine depending on a school’s size.

Although a number of students with known allergies carry the device on a daily basis at school, supporters of the legislation argue that a quarter of anaphylactic shock incidents in schools involve students who are unaware they have an allergy.  They point out that without a dose of epinephrine to stop swelling in the throat or tongue, unsuspecting students can die.  According to Dr. Matthew Greenhawt, a University of Michigan pediatric allergist and director of research for the school’s Food Allergy Center, one out of every 13 children under age 18 suffer from food allergies, or two in an average-size classroom.

The No Nuts Moms Group is spearheading the legislation, which was recently approved by a House committee.  EpiPen proponents believe the devices should be available in schools just as emergency defibrillators and fire extinguishers are.  In July 2013, the U.S. House of Representatives passed legislation providing grant preferences to states that come up with policies to make epinephrine available in schools. Twenty-seven states either require or permit school districts to stock the drug.

The Michigan legislation would let doctors and pharmacists prescribe epinephrine to school boards, and provide immunity from malpractice lawsuits unless they acted recklessly.  The proposed  law would also extend immunity to teachers and other school workers who use the drug, provided they act in “good faith.”  Many schools would need to train non-nurses to use an EpiPen because Michigan averages just one nurse for every 4,411 students as of 2010.

Source: CBS Detroit, 10/7/13, By David Eggert (AP)

[Editor's Note: In June 2005, Legal Clips summarized an article in the Miami Herald reporting that Florida Governor Jeb Bush signed into law a bill allowing severely allergic students in all school districts to carry EpiPens.  Some Florida school districts, citing safety concerns to other students, had not been allowing students to carry EpiPens during the day, instead requiring that the devices be kept in the school office.] 

Legal Clips on hiatus until October 15th

Legal Clips will be on hiatus from Tuesday, October 8th, through Monday, October 14th, for the annual Council of School Attorneys’ School Law Practice Seminar.  Legal Clips will return on Tuesday, October 15th, with new posts for our subscribers.

Ninth Circuit holds Garcetti rule on public employee speech does not apply to teaching and academic writing

Demers v. Austin, No. 11-35558 (9th Cir. Sept. 4, 2013)

Abstract: A U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel has ruled that Garcetti v. Ceballos, 547 U.S. 410 (2006), does not apply to teaching and writing on academic matters by teachers employed by the state.  Instead, it held such speech/expression by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).

On the facts presented, the panel concluded that a document written by the plaintiff, a college professor, addressed a matter of public concern under Pickering.  It was therefore protected speech, and the plaintiff’s claim that his college employer retaliated against him because of the document stated a valid cause of action.  The panel accorded the defendants qualified immunity, however, concluding that Garcetti’s applicability to teachers and professors was not clearly established at time the incidents occurred.

Facts/Issues: David Demers served as a tenured member of the faculty at the Edward R. Murrow College of Communications at Washington State University (WSU).  Demers brought suit alleging First Amendment violations by WSU Interim Director of the Murrow School Erica Austin, Vice Provost for Faculty Affairs Frances McSweeney, Dean of the College of Liberal Arts Erich Lear, and Interim WSU Provost and Executive Vice President Warwick Bayly. Demers contended that the defendants retaliated against him, in violation of his First Amendment rights, for distributing a pamphlet called “The 7-Step Plan” (“Plan”) (containing recommendations for restructuring the faculty) and for distributing a draft introduction and draft chapters of an in-progress book titled “The Ivory Tower of Babel” (“Ivory Tower”).  Demers believed that after he circulated the materials, the administration retaliated against him by giving him negative annual performance reviews that contained falsehoods, by conducting two internal audits, and by giving him a formal notice of discipline.

The district court granted summary judgment to the defendants.  It held that the Plan and Ivory Tower were written and distributed in the performance of Demers’ official duties as a faculty member of WSU.  Therefore, based on Garcetti v. Ceballos, 547 U.S. 410 (2006), his speech was not protected under the First Amendment.  The district court held, alternatively, with respect to the Plan, that it did not address a matter of public concern and was therefore not protected for that reason.

Demers’ appeal made two arguments.  First, that writing and distributing the Plan were not done pursuant to his official duties, and thus do not fall within the holding in Garcetti.  Second, that even if he wrote and distributed the Plan (as well as Ivory Tower) pursuant to his official duties, Garcetti does not extend to speech and academic writing by a publicly employed teacher.

Ruling/Rationale: The Ninth Circuit panel affirmed in part and reversed in part and remanded the case back to the lower court for further proceedings.

The Garcetti Decision

The panel summarized the Supreme Court’s decision in Garcetti:

“Until the Supreme Court’s 2006 decision in Garcetti, public employees’ First Amendment claims were governed by the public concern analysis and balancing test set out in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983).  Garcetti, however, changed the law.  The plaintiff in Garcetti was a deputy district attorney who had written a memorandum concluding that a police affidavit supporting a search warrant application contained serious misrepresentations.  Garcetti, 547 U.S. at 413–14.  The plaintiff contended that his employer retaliated against him in violation of the First Amendment for having written and then defended the memorandum.  Id. at 415.  The Court held in Garcetti that ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.’  Id. at 421.”

The first issue was whether Demers wrote and distributed the Plan and Ivory Tower pursuant to his official duties as a professor at WSU.  If he did not, as Demers argued, Garcetti would not apply.  The panel noted that questions concerning the nature and scope of an employee’s job description were questions of fact under Garcetti.  The district court concluded that Demers was acting  in his capacity as a professor at WSU, and the panel agreed.

Demers further argued, however, that Garcetti did not apply to teaching and academic writing by teachers and professors.  The panel agreed with Demers on this point.

The panel noted that in Garcetti the Supreme Court expressly left open the question whether its holding applied to “speech related to scholarship or teaching.”  Garcetti at 425.  Justice Souter’s dissent in Garcetti captured the concern that caused the Court to defer that question: “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’”  Id. at 438.  The panel accepted this concern as significant enough to exempt scholarship and teaching from Garcetti:

 “We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court….We conclude that Garcetti does not — indeed, consistent with the First Amendment, cannot — apply to teaching and academic writing that are performed “pursuant to the official duties” of a teacher and professor.  We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering


The Pickering test consists of two parts: (1) the employee must show that his or her speech addressed “matters of public concern;” and (2) the employee’s interest “in commenting upon matters of public concern” must outweigh “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The panel noted that it will often be difficult for courts to assess the strength of the public interest in academic speech as well as the strength of the academic institution’s interest.  The panel expressed two cautions in this analysis:

First, not all speech by a teacher or professor addresses a matter of public concern.  Teachers and professors, like other public employees, speak and write on purely private matters.  If a publicly employed professor speaks or writes about what is “properly viewed as essentially a private grievance,” Roe v. City & Cnty. of S.F., 109 F.3d 578, 585 (9th Cir. 1997), the First Amendment does not protect him or her from any adverse reaction.  Second, protected academic writing is not confined to scholarship.  Much academic writing is, of course, scholarship.  But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring.  Depending on its scope and character, such writing may well address matters of public concern under Pickering.

The panel concluded that the Plan did address a matter of public interest because “Demers’s Plan contained serious suggestions about the future course of an important department of WSU, at a time when the Murrow School itself was debating some of those very suggestions.”

The panel pointed out that because the district court had ruled that the Plan did not address a matter of public concern, the district had not reached the three questions essential to determining if the defendants had engaged in retaliation:  1) Whether the defendants had a sufficient interest in controlling Demers’ circulation of the Plan to deprive it of First Amendment protection; 2) whether, if the Plan was protected speech under the First Amendment, its circulation was a substantial or motivating factor in any adverse employment action the defendants might have taken; and 3) whether the defendants would have taken such employment action absent the protected speech.  The panel said “that the district court may address those questions, as appropriate, on remand.”

As a final matter, the panel ruled that the defendants were entitled to qualified immunity from Demers’ retaliation suit.  The panel concluded that “because there is no Ninth Circuit law on point to inform defendants about whether or how Garcetti might apply to a professor’s academic speech, we cannot say that the contours of the right in this circuit were ‘sufficiently clear that every reasonable official would have understood’ that this conduct violated that right.”  However, it emphasized that even though qualified immunity prevents Demers from maintaining a suit for damages, if the district court found that Demers’ First Amendment rights were violated, “it may still grant injunctive relief to the degree it is appropriate.”

Demers v. Austin, No. 11-35558 (9th Cir. Sept. 4, 2013)

[Editor's Note: In October 2010, Legal Clips summarized a decision by a U.S. Court of Appeals for the Sixth Circuit panel in Evans-Marshall v. Board of Educ. holding that a high school teacher’s First Amendment claim that she was terminated from her teaching position in retaliation for exercising her free speech rights fails as a matter of law because First Amendment speech protections do not extend to in-class curricular speech of primary and secondary school teachers made pursuant to their official duties. The panel concluded that the teacher could not overcome the hurdle presented by the U.S. Supreme Court’s ruling in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), that a public employee asserting a First Amendment retaliation claim based on the exercise of free speech must show that it was not made “pursuant to [the employee's] official duties.”]

3rd Circuit rules misidentification as disabled can create a claim under ADA and 504 but not IDEA, but district wins on summary judgement

S.H. v. Lower Merion Sch. Dist., No. 12-3264 (3d Cir. Sept. 5, 2013)

Abstract: A U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) three-judge panel has ruled that a student who was misidentified as disabled cannot maintain a suit against a school district under the Individuals with Disabilities Education Act (IDEA).  The panel concluded that the IDEA applies only to those students who are in fact disabled.  However, it held that the student can maintain a suit based on the misidentification under § 504 of the Rehabilitation Act (§ 504) and the Americans with Disabilities Act (ADA).  The panel found that the student had viable claims under § 504 and the ADA because those statutes grant rights to individuals “regarded as” having a disability.

The panel further held that compensatory damages are available under Section 504 and the ADA if the plaintiff could prove intentional discrimination, determined via a deliberate indifference standard.  Applying the deliberate indifference test to the merits of the instant § 504/ADA claims, the panel concluded that the evidence was insufficient to survive summary judgement.

Facts/Issues: The Lower Merion School District (LMSD) identified S.H. as having a learning disability and placed her in special education in the 5th grade. Her mother consented to evaluations and to S.H.’s IEP and placement annually.  S.H. remained in special education until the end of the 1oth grade, when she was removed following new evaluations.  S.H. expressed her belief on a number of occasions over the years that she did not belong in special education classes.

S.H. and her mother filed suit against LMSD in federal district court claiming that the school district misdiagnosed S.H. as disabled and as a result are liable for compensatory services under the IDEA and compensatory damages under Section 504 and the ADA.  The IDEA count asserted that the district violated a duty to accurately identify children with disabilities and to ensure that S.H. was properly evaluated and assessed as not disabled.  Counts two and three alleged a violation of § 504 and the ADA, respectively, claiming that the district discriminated against S.H. by erroneously identifying her as a child with a disability.  The plaintiffs claimed that receiving special education services damaged S.H’s self-confidence and academic progress, prevented her from participating in certain regular-curriculum classes, and caused $127,010. in damages due to additional college tuition for 2 years, 50 hours of psychotherapy, and 600 hours of tutoring.

The district court dismissed the IDEA claim for failure to state a cause of action, and subsequently granted summary judgment to LMSD on the remaining § 504 and ADA claims.

Ruling/Rationale: The Third Circuit panel affirmed the lower court on all claims.

Restating the issue raised by S.H.’s appeal of the IDEA claim as whether IDEA’s jurisdictional umbrella encompasses not only students with disabilities, but also those students misidentified as being disabled, the panel noted that the question was one of first impression for the Third Circuit.  The panel determined that “under the Act’s plain language, it is clear that the IDEA creates a cause of action only for individuals with disabilities.”  The panel, therefore, concluded: “Because the plain language of the statute only permits a child with a disability to bring a claim under the IDEA, S.H., who by her own admission is not disabled, cannot sustain her action.”

The panel ruled differently concerning Section 504 and the ADA, because those statutes provide protection not only for individuals with a disabilities, but also those who are “regarded as” having a disability.  Therefore, individuals such as S.H., who are not disabled but who are viewed or identified as disabled, can maintain a cause of action under Section 504 or the ADA.  In order to recover compensatory damages, however, a plaintiff must prove intentional discrimination.  This requirement comes from the Supreme Court’s holdings in Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 597, 607 (1983) and Alexander v. Sandoval, 532 U.S. 275, 282-83 (2001) (restating Guardian’s holding that “private individuals [can] not recover compensatory damages under Title VI except for intentional discrimination”).  The Supreme Court ruled in Barnes v. Gorman, 536 U.S. 181, 185 (2002) that remedies available under Section 504 and the ADA are coextensive with the remedies under Title VI, therefore Title VI’s requirement of intentional discrimination applies in Section 504 and ADA claims.

The panel noted that two tests have been adopted among the circuits for determining intentional discrimination: deliberate indifference and discriminatory animus.  Deliberate indifference has been adopted as the standard in the second, eight, ninth, tenth, and eleventh circuits.  The first and fifth circuits have used the more rigorous discriminatory animus test.  The panel adopted the deliberate indifference standard, opining that the deliberate indifference standard “will give meaning to [§ 504’s] and the ADA’s purpose to end systematic neglect.”

The deliberate indifference standard requires the plaintiff to prove two elements: (1) knowledge that a federally protected right is substantially likely to be violated (in this case, knowledge that S.H. was likely not disabled and therefore should not have been in special education), and (2) failure to act despite that knowledge.

Addressing the merits of S.H.’s § 504 and the ADA claims, the panel found that she failed to satisfy the knowledge requirement of the deliberate indifference test.  The evidence presented at the summary judgement stage was insufficient to prove LMSD officials knew that “S.H. was likely not disabled and therefore should not have been in special education.”  The panel dismissed S.H.’s argument that she consistently told officials that she did not belong in special education, saying that “subjective complaints about being put in special education classes put the School District on notice of nothing more than the fact that S.H. did not like being in special education classes.”

The panel also found the psychological evaluations showing that S.H. was not disabled unavailing because they were done after S.H. had already been removed from special education classes.  It said, “The relevant inquiry is knowledge, and evidence that the School District may have been wrong about S.H.’s diagnosis is not evidence that the School District had knowledge that it was a wrong diagnosis.”  Additionally, deliberate indifference requires actual knowledge.

Finally, the panel found that S.H.’s best argument, based on her test scores and good grades, failed because she “offered no evidence that high test scores are an indication that a student likely does not have a learning disability, nor [has she] offered evidence that children in special education usually do not receive good grades.”

S.H. v. Lower Merion Sch. Dist., No. 12-3264 (3d Cir. Sept. 5, 2013)

[Editor's Note: In February 2012, Legal Clips summarized a press release for the U.S. Department of Education's Office for Civil Rights (OCR) announcing it had issued a Dear Colleague letter and Frequently Asked Questions document on the requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) in elementary and secondary schools, given the changes to those laws made by the ADA Amendments Act.  The Act, effective January 1, 2009, “broadened the meaning of disability and, in most cases, shifts the inquiry away from the question of whether a student has a disability as defined by the ADA and Section 504, and toward school districts’ actions and obligations to ensure equal education opportunities.”]

Arizona high court rules state must fund education per voter passed referendum requiring annual increases

Cave Creek Unified Sch. Dist. v. Ducey, No. 13-0039 (Ariz. Sept. 26, 2013)

Abstract: The Arizona Supreme Court ruled that the legislature must fund public education in accordance with the terms of a voter referendum, which required the legislature to provide annual inflationary increases, because the voter referendum was constitutionally protected against legislative amendment.

Facts/Issues: In 1998, the Arizona legislature and voters amended the state constitution to instill protections for voter approved initiatives and referendums. The constitutional measure is known as the Voter Protection Act (VPA).  Before the VPA’s adoption, the legislature could repeal or modify a voter-approved law if it was passed by less than a majority of all registered voters.  The VPA, however, imposed heightened constitutional restrictions.  Now the legislature cannot repeal “an initiative [or referendum] measure approved by a majority of the votes cast thereon.”  Ariz. Const. art. 4, pt. 1, § 1(6)(B).

In 2001, the legislature approved SB 1007, which proposed a sales tax to increase funding for public schools, community colleges, and universities. The legislature referred portions of SB 1007 to voter referendum in the 2000 general election as Proposition 301.  The voters approved Proposition 301, which included a requirement that the legislature make annual inflation adjustments to the funding of K-12 public schools using a prescribed formula.

From 2001 to 2010, the legislature annually adjusted education funding as required in Proposition 301.  Its 2010-11 budget (HB 2008), however, included only a partial adjustment.  Several school districts and other parties (“Cave Creek”) sued the State of Arizona, alleging that HB 2008 amended or repealed Proposition 301, which as a voter-approved law had the constitutional protections of the VPA.  Cave Creek sought a declaratory judgment that Proposition 301 requires the legislature to annually and fully increase education funding according to its escalator formula.

A state superior court dismissed the suit, ruling that voters cannot direct legislative spending.  The Arizona Court of Appeals reversed and remanded the case for entry of a declaratory judgment in favor of Cave Creek.  It held that the VPA required the legislature to honor the provisions of Proposition 301, unless they were modified by the voters. 

Ruling/Rationale: The Arizona Supreme Court (ASC) affirmed the appellate court’s decision.

Under the Arizona Constitution, the state legislature shares the power to make laws with the people.  Citing to the Arizona Constitution, the ASC stated that through the initiative and referendum processes, “the people reserve[d] the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.” Ariz. Const. art. 4, pt. 1, § 1(1).  The court also pointed out that the VPA “limits the legislature’s authority to modify voter initiatives and referenda.”

The supreme court rejected the state’s argument that Proposition 301 was unconstitutional because it lacked a constitutional underpinning expressly authorizing the voters to give the legislature statutory commands or to dictate legislative spending.

The court rejected the state’s argument, and stated that the correct question “is whether the Arizona Constitution precludes the voters from enacting the statutory directive.”  The supreme court found that the state had failed to identify any state or federal constitutional provision restricting the voters’ authority.  It held that since the legislature could have constitutionally passed Proposition 301, the voters could constitutionally pass it also.  Tilson v. Mofford, 153 Ariz. 468, 470, 737 P.2d 1367, 1369 (1987) (“The legislative power of the people is as great as that of the legislature.”); cf. Ariz. Const. art. 22, § 14 (“Any law which may be enacted by the Legislature under this Constitution may be enacted by the people under the Initiative.”).

Acknowledging that “one legislature may not enact a statute that irrevocably binds successor legislatures,” the ASC conceded that had the legislature itself enacted Proposition 301 rather than referring the proposition to the voters, “subsequent legislatures could repeal, amend, or otherwise adjust that statute’s funding scheme.”  However, the court rejected the state’s attempt to extrapolate from that principle that a voter-approved statute cannot bind future legislatures.  Instead, the supreme court concluded: “But having chosen to refer the measure to the people, who then passed it, the legislature is subject to the restrictions of the VPA, which fundamentally ‘altered the balance of power between the electorate and the legislature.’”

The court stressed that the “VPA expressly limits the legislature’s powers relating to a “referendum measure” approved by a majority of votes cast thereon, … [t]hus, the VPA’s requirements and restrictions do not differentiate between voter-approved statutes and constitutional provisions.”  It, therefore, held: “With respect to voter-approved laws such as [Proposition 301], the VPA restricts the legislature’s power to repeal, amend, or supersede the measure.”

The court concluded that “because HB 2008 did not include the full inflation adjustment that [Proposition 301] required, it violated the VPA’s express limitations on legislative changes to voter-approved laws.”

The court also awarded Cave Creek attorneys’ fees under the private attorney general doctrine.

Cave Creek Unified Sch. Dist. v. Ducey, No. 13-0039 (Ariz. Sept. 26, 2013)

[Editor's Note: In January 2013, Legal Clips summarized an article in The Republic reporting on the Arizona Court of Appeals' decision in this case.]

D.C. sues charter school claiming charter school officials diverted millions for personal gain

The District of Columbia has filed suit against the Options Public Charter School (OPCS) claiming that charter school officials diverted millions of taxpayer dollars intended to fund programs for students to personal use, says The Washington Post.  The D.C. Superior Court suit alleges that three former managers, the school’s board chairwoman, and a senior official at the D.C. Public Charter School Board created a sham contracting scheme that led to more than $3 million being diverted to companies founded by the managers. The companies allegedly provided little or no services in return.

D.C. Attorney General Irvin B. Nathan is asking the court to appoint a receiver to oversee the school and take it out of the hands of its current leaders.  “We must take swift action to protect the District and its funds when the managers of a nonprofit school, whose mission is to serve vulnerable D.C. youth, use the school as a cash-generating machine to enrich themselves and the for-profit companies they control,” Nathan said.  City officials are also investigating potential criminal charges.

On separate front, staff for the D.C Public Charter School Board are recommending that the board vote to take the first step to closing OPCS at its Oct. 16 meeting.  Scott Pearson, executive director of the city charter board, said that regardless of the board’s vote, OPCS will remain open through the end of this school year.

Shortly after The Washington Post made a Freedom of Information Act request seeking contracts between the school and two for-profit companies founded and controlled by its senior managers, Exceptional Education Management Corp. (EEMC) and Exceptional Education Services (EES), the D.C.’s charter board began its investigation.

Options paid one of two contractors $981,250 for transportation services during the 2012-2013 school year.  That is more than 10 times what the school had paid a different company for transportation services the year before, according to the city’s complaint.  The school had also loaned one of the companies $159,000, paid $1.45 million for services yet to be documented and paid $449,000 for billing services that had been performed by Options employees.  More than $200,000 meant to pay for services for Options students was used to pay rent and provide furniture for EEMC’s office space in downtown Washington.

Source: The Washington Post, 10/1/13, By Emma Brown

[Editor's Note: In January 2013, Legal Clips summarized an article in The Oregonian reporting that the Oregon Department of Justice is suing Tim King and Norm Donohoe, who ran a chain of taxpayer-funded charter schools, accusing the pair of racketeering, money laundering and other fraud from 2007 to 2010 that cost the taxpayers $20 million.]

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