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Teacher’s suit against Virginia district alleges she was subjected to unjustified strip search

A teacher at Bayside High School (BHS) is suing the Virginia Beach School Board (VBSB) and a number of BHS officials, reports Courthouse News Service, alleging that she was strip searched in violation of her Fourth and Fourteenth Amendment rights.  The teacher, Donika Anderson Wagner, charges that a school nurse strip searched her “down to her undergarments” because of a report that one of her students had scabies.

According to the suit, the parent of the student infested with scabies reported the student’s condition to BHS officials.  School Health Advisory Board Chairwoman Mary Shaw instructed the BHS Principal and Assistant Principal to take Anderson to the school nurse, Alpana Dave.  Nurse Dave conducted a search and visual inspection of Anderson’s body, involving – with Nurse Dave’s assistance – the removal of clothes, down to her undergarments.  The legal complaint adds that the “strip search revealed nothing – no indications of scabies or anything else unusual.”

The complaint alleges: “The search was unjustified at its inception, and the nature of the search as conducted – removing Ms. Anderson’s clothes to inspect her body for mites – was not reasonable to the perceived or alleged problem in its scope, and unsupported by any objective facts.”  She is seeking $622,000 in damages.

Source: Courthouse News Service, 4/24/14, By Ryan Abbott

[Editor's Note: Strip searches are usually discussed in connection with students and often related to attempts to find drugs, weapons, or missing property.  In April 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TH) three-judge panel in Hearring v. Sliwowski, holding that a school nurse, who conducted  a medically motivated visual examination of the vaginal area of a 6 year old student, was entitled to qualified immunity from a suit alleging that the nurse’s examination constituted an unreasonable search in violation of the student’s Fourth Amendment rights.  The panel, assuming without deciding that the examination amounted to a Fourth Amendment violation, concluded that the right to be free from an unwarranted medically motivated visual examination of one’s genitals was not clearly established at the time the nurse examined the student.]

Minnesota district’s legal liability insurance premium up almost 300% over lawsuits

According to a Pioneer Press article on insurancenewsnet.com, the cost of legal insurance for St. Paul Public Schools (SPPS) jumped almost 280% this year following a number of lawsuits and settlements.  The SPPS board of education approved a $595,600 premium cost for a policy known as school leaders’ legal liability.

Costs for that type of coverage have gone up statewide as a result of the increasing number of suits and the fact that plaintiffs are seeking larger monetary damages.  “Over the last decade, the frequency and severity of educator legal claims have grown dramatically,” said Jim Ketterson, president of Riverport Insurance, which provides coverage to St. Paul, Anoka-Hennepin, and other Minnesota school districts.

Legal liability insurance generally covers claims or lawsuits against the district and its personnel, including school board members, principals, and district volunteers.  Those claims can include employment disputes, discrimination charges, data privacy issues and others.  Claims involving bodily injury or property damage are covered under other policies.

Source: insurancenewsnet.com, 4/23/14, By Mila Koumpilova (Pioneer Press)

[Editor's Note: In July 2013, Legal Clips summarized an article in The New York Times reporting that school districts considering arming employees were facing a formidable economic obstacle: insurance carriers who are threatening to increase premiums or cancel coverage completely.  During legislative sessions in 2013, seven states enacted laws permitting teachers or administrators to carry guns in schools.] 

New Mexico law allowing schools to stockpile certain medications gets mixed reactions

The New Mexico School Nurses Association (NMNA) applauds the state’s new law allowing school districts to stockpile epinephrine, used to treat anaphylaxis, a severe allergic reaction, and albuterol, used to treat asthma, reports the Albuquerque Journal.  However, a number of local school districts, including the Albuquerque Public Schools (APS), do not share that sentiment.

The new law, which takes effect July 1, 2014, allows school nurses to give the medications to students suffering an attack or reaction, even if they have never been diagnosed with asthma or a severe allergy.  It also allows nurses to give the drugs to diagnosed students who don’t have their prescribed medication at school, and permits other school employees to give epinephrine if they have undergone training.

One of the reasons some districts are not eager to stock the drugs is because a proposed provision in the legislation that would have protected schools from civil lawsuits was removed at the request of the New Mexico Trial Lawyers Association and Foundation.  As a result,  if a nurse or a trained employee failed to store or administer the drug properly they could be held liable.

APS policy analyst Carrie Robin Menapace points out that one concern for districts is the lack of immunity and another is that the program is unfunded.   State Sen. Mark Moores, who sponsored the bill, said he and NMNA didn’t fight removal of the immunity clause because they wanted the bill to pass.

Source: Albuquerque Journal, 4/19/14, By Jon Swedien

[Editor's Note: In January 2014, Legal Clips summarized an Associated Press story on CBS Detroit reporting that Michigan Gov. Rick Snyder had a signed law requiring every public school in Michigan to have epinephrine injectors to treat allergic reactions. The legislation also requires schools to have two epinephrine devices starting next academic year and to ensure that at least two staff members are trained to use them.]

Sua Sponte: Maryland Delays Using Student Growth Data in Teacher Evaluations

The Maryland General Assembly has passed legislation delaying the use of student growth measures in a teacher’s or principal’s evaluation.  The new law provides that performance evaluations “may not require student growth data based on state assessments to be used to make personnel decisions before the 2016-2017 school year.”

The legislation, introduced by a former school board member, had the backing of the State Superintendent of Schools, Dr. Lillian Lowery.  It was also supported by the state teachers’ association.

[Editor's Note: The bills (Senate Bill 676/House Bill 1167) can be viewed at the respective link.

In March, 2014, Legal Clips reported that the New York State Assembly, in a 117-10 vote, passed a bill removing Common Core-aligned test scores from teacher and principal evaluations for two years

In August, 2013, Legal Clips reported that the State of Rhode Island had suspended the use of student data in teacher evaluations due to the widespread fear of teachers.]

Second Circuit rules that extended school year services must satisfy LRE requirements

T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)

Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that the Individuals with Disabilities Education Act’s least restrictive environment (LRE) requirement applies to the extended school year (ESY) component of a special education student’s individualized education plan with the same force that it applies to the school year component of the IEP.  It concluded that a school district cannot escape its duty to educate a disabled student in an LRE simply because it does not offer mainstream classes as part of its ESY program.

The panel also concluded that the school district was not required to reimburse the parents for the full cost of providing the student’s pendency services–services provided during litigation–at a private placement.  The school district had satisfied its duties under the IDEA when it reimbursed the parents for the cost of such services during the time when the district refused to provide the services.  Thereafter, the district offered to provide the services, and when the parents rejected that offer they became responsible for the costs of the pendency services they obtained privately.  However, the district court has the discretion to order reimbursement up to the amount it would have cost the school district to provide those services.

Facts/Issues: T.M., who suffers from autism, was receiving special education services from the Cornwall Central School District (CCSD).  Because of the nature of T.M.’s disability, his IEP included an ESY component.  In two successive proposed IEPs, CCSD’s proposed ESY placement for the summer of 2010 was in a self-contained special education classroom with no non-disabled students.  The CCSD administered only two summer school programs, and neither included non-disabled students.  However, during the regular school year, T.M.’s placement had been in a mainstream classroom, where he made satisfactory progress, and the school district’s proposed placement, for the regular school year following the disputed ESY placement, was again in a regular classroom.  The parents rejected the proposed IEPs because they failed to provide T.M. with a free appropriate public education in a least restrictive environment, and requested a due process hearing.

The parents then enrolled T.M. in a regular mainstream kindergarten program at a private school for the 2010-11 school year.  CCSD reimbursed T.M.’s parents for the amount that they spent on private services for the 2010–2011 year, and thereafter offered to provide the same services in the district. However, T.M.’s parents kept him in the private school for the 2011-12 school year and thereafter during the pendency of the litigation.

The parents filed suit in federal district court following state administrative proceedings, claiming that CCSD violated its LRE obligations by not offering a mainstreamed ESY program and that CCSD was liable for pendency services. The district court granted summary judgment in CCSD’s favor on the ESY issue. It determined that the ESY program offered by the school district did not violate the IDEA’s LRE requirement.  The district court conceded that CCSD had only offered T.M. a special education summer program, not a mainstream program, but found that T.M.’s parents had “not shown that a less‐restrictive placement option was available to TM but not offered.”

However, the district court ordered the school district to reimburse the parents for pendency services.  The parents appealed the ESY/LRE ruling, and CCSD appealed the pendency services ruling.

Ruling/Rationale: The Second Circuit panel vacated the district court’s decision and remanded the case for further proceedings.

The panel applied the two-prong LRE test developed in P. ex rel. Mr.. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008): “Whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and if not, then whether the school has mainstreamed the child to the maximum extent appropriate.”

According to the panel, while these two requirements are often in tension, in the present case there was no conflict between them.  Applying the first prong of the Newington test, it found that it was undisputed that T.M. was able to achieve a satisfactory education in a regular classroom.  The record clearly demonstrated that “T.M. could succeed in a normal classroom environment with the use of supplementary aids and services,” while conversely there was “nothing in the record indicat[ing] that T.M. would obtain greater educational benefits from a more restrictive setting.”  At the time the district proposed the ESY placement, T.M. had already completed a satisfactory year in a mainstream classroom, and the district was proposing the same placement for the upcoming regular school year.  Based on the first prong, the panel concluded that the mainstream classroom was the least restrictive environment appropriate for T.M.’s educational needs.  It also concluded that the district’s proposed ESY placement violated the LRE requirement because it placed “T.M. in a more restrictive educational setting for his ESY program than his disability required.”

The CCSD argued that the LRE requirement is different for ESY programs than for regular school year programs, and that a school district violates it only if a least restrictive environment is available, and it is not offered.  The CCSD maintained that because it did not have a mainstream program available, it was not required to offer a  mainstream program.  The panel rejected CCSD’s contention, finding that “[i]f a disabled child needs ESY services in order to prevent substantial regression, that child’s ESY placement is an integral part of his or her twelve‐month educational program.”  The panel stated:

Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available.  See Walczak v. Fla. Union Free School Dist., 142 F.3d 119, 122, (“[S]pecial education and related services must be provided in the least restrictive setting consistent with a child’s needs.”). …For ESY programs as for academic year programs, a child’s LRE is primarily defined by the nature of the child’s disabilities rather than by the placements that the school district chooses to offer.

The panel noted that the LRE statute “requires the state to ensure that ‘special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of [the] child is such that education in regular classes . . . cannot be achieved satisfactorily.’  20 U.S.C. § 1412(a)(5)(A) (emphasis added).”

The panel supported its conclusion with reference to the LRE provision in the IDEA regulations, 34 C.F.R. § 300.115(a), which requires that a school district “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.”  That continuum must include at least “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.  Id. § 300.115(b).”

The panel said that a school district that did not have mainstream summer programs could meet its LRE obligation by placing the student in a private program or in a program operated by another public entity.  But “if a school district simply refuses to consider a sufficient continuum of possible ESY placements, and thereby denies a child a FAPE in her LRE, then it may be liable for reimbursement if the child’s parents find an appropriate placement.”

The CCSD maintained that it was unable to offer T.M. a mainstream ESY placement because: “(1) no public mainstream ESY programs existed in the area and (2) New York law prohibited it from offering T.M. a placement in a private mainstream ESY program.”  The panel said that even if those arguments were factual accurate, they do not alter CCSD’s “obligation under the IDEA to consider a full continuum of alternative placements and then offer T.M. the least restrictive placement from that continuum that is appropriate for his needs.  See 34 C.F.R. § 300.115(a)”

The panel noted that (1) the IDEA does not require a public school district to create any new ESY programs; (2) even if a school district fails to place a disabled student in an ESY program that satisfies LRE, the district will not be liable for tuition reimbursement unless the parents’ private placement was appropriate and the equitable considerations favor reimbursement; and (3) a school district is not required to offer every conceivable ESY environment that might suit a particular student’s LRE.

Even though CCSD violated the IDEA, it was not required to reimburse the parents unless they could prove that their alternative placement for T.M. at the private school was appropriate and that equitable considerations favor reimbursement. The panel remanded the case to the district court to address these two issues.

The panel also ruled that the district court erred by requiring the school district to continue reimbursing T.M.’s parents for pendency services that they obtained from private providers for T.M. after CCSD offered to provide those pendency services directly.  The panel agreed with CCSD that at the point the school district made its offer to provide such services itself, the parents were responsible for the costs of those services when they decided to obtain them from private vendors.  Even though CCSD was wrong not to initially provide the services, the IDEA did not bar the school district from correcting its mistake and offering to provide the required pendency services directly.

However, the panel said that “under the circumstances presented here, we believe it is within the district court’s authority to order [CCSD] to reimburse T.M.’s parents for pendency services up to the amount that it would have cost [CCSD] itself to provide the required pendency services from July 2011 through the end of the present school year….We leave it to the district court on remand to decide whether such a reimbursement award is appropriate, and if so, to calculate the amount that [CCSD] would have spent to provide T.M.’s pendency services directly from July 2011 through the end of the current school year.” The panel cited the following factors as legitimate considerations in the district court’s decision: reimbursement would be cost neutral to the district because the district was spared the expense of providing the services, the parents were lead to believe by the rulings from the IHO and district court that they would be entitled to reimbursement, and T.M. will presumably suffered some disruption when he transfers from his private program to CCSD’s program which may be worthy of compensation.

T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)

[Editor's Note:  As the Second Circuit panel's opinion points out, the LRE requirement is not absolute and must be balanced against the educational benefits that the disabled student will receive on a case-by-case basis.  In July 2012, Legal Clips summarized a decision by a the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) in L.G. v. Fair Lawn Bd. of Educ., affirming the district court’s decision granting summary judgment in favor of the school district, holding that the district did not violate the LRE requirement of IDEA when it developed an IEP that placed a disabled student in a class with other students with the same disability and did not provide for interaction with non-disabled peers.  The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors.]

Second Circuit upholds policy prohibiting religious worship services in school facilities

The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)

Abstract: A U.S. Court of Appeals for the Second Circuit (NY, VT, CT) three-judge panel, in a 2-1 split, has ruled that a school board’s rule prohibiting outside groups from holding religious worship services in school facilities outside school hours does not violate the First Amendment’s Free Exercise Clause.  The panel’s majority also rejected the claim that such a prohibition violates the First Amendment’s Establishment Clause.  It declined to apply strict scrutiny analysis to the board’s regulation because the prohibition did not constitute viewpoint discrimination.

Facts/Issues: The case concerns the constitutionally of New York City Board of Education (NYCBOE) Regulation I.Q. (Reg. I.Q.).  Reg. I.Q. is a use of facilities regulation that provides: “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”

This decision is the fifth time the Second Circuit has reviewed the regulation, from its first opinion in Bronx 13 Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997) to Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (Bronx Household IV).  Following Bronx Household IV, the case was remanded to the federal district court, where the district court granted summary judgment in favor of the Bronx Household of Faith (BHF) and issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.

The district court determined that Reg.I.Q. violated the Free Exercise Clause and the Establishment Clause.  The court concluded that the regulation was not neutral on its face, and that it discriminated between religions fitting a formal religious worship service model and those religions whose worship practices are less structured.

This appeal followed.

Ruling/Rationale: The panel’s majority held that Regulation I.Q. is constitutional and vacated the lower court’s permanent injunction.

The majority found no violation of the Free Exercise Clause.  It said that the Free Exercise Clause does not require NYCBOE to provide BHF with a subsidized place to hold worship services.  While the Free Exercise Clause guarantees the right of individuals to worship without government interference, it “has never been understood to require government to finance a subject’s exercise of religion.”  It added that “to the extent any such suggestion has been raised in litigation, it has been rejected.”  The majority noted that case law is replete with examples of federal courts holding that a legislature’s decision not to subsidized a fundamental right does not amount to infringement of that right.  It concluded that while government may not place obstacles in the way of the free exercise of religion, it has no corresponding duty to remove those it has not created.

The majority also found the district court’s reliance on Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), as authority for subjecting Reg. I.Q. to a strict scrutiny analysis was misplaced.  It summarized Lukumi:

In Lukumi, worshipers in the Santeria religion, in which animal sacrifice plays an important part of worship services, were planning to build a house of worship in the city of Hialeah, Florida.  Members of Hialeah’s city council disapproved of Santeria’s practice of animal sacrifice and, with a goal of banning the practice, the council passed a set of ordinances prohibiting the unnecessary killing of animals in a ritual or ceremony not primarily for the purpose of food consumption. Hialeah claimed that the prohibition was motivated by secular objectives including public health and prevention of cruelty to animals.  Although the set of ordinances was designed to appear to apply even-handedly to religious and secular conduct alike, a plethora of exceptions and exclusions (exempting, for example, fishing and Kosher slaughter) made the prohibition apply almost exclusively to the Santeria ritual of animal sacrifice.  (In addition, the legislative history revealed that disapproval of animal sacrifice as a Santeria religious ritual had in fact motivated the legislators.  Because the prohibition was found to be motivated by disapproval of a religious practice and represented an attempt suppress it, and because, notwithstanding its disguise, it in fact applied almost exclusively to the Santeria ritual of animal sacrifice, the Supreme Court found that the ordinances were subject to strict scrutiny, and that they violated the plaintiffs’ free exercise rights.

The majority pointed out that while the ordinance in Lukumi was motivated by disapproval of a particular religious practice, NYCBOE harbored no such motivation when it adopted Reg. I.Q.  It stated that NYCBOE’s sole reason for excluding religious worship services from its facilities was the “concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion.”  The panel rejected the district court’s conclusion that because there is “no secular analog” to the conducting of religious worship services, NYCBOE’s decision not to subsidize BHF’s services “is necessarily a suspect discrimination against religion to be assessed under strict scrutiny.”  According to the majority, the lower court’s conclusion misapplied the Supreme Court’s reasoning in Lukumi.It pointed out that while “the ordinances in Lukumi were intended to, and did, suppress a religious ritual of a particular faith,…Reg. I.Q. does no such thing.” It stressed that the regulation represented “only a decision by the Board not to subsidize religious worship services by providing rent-free school facilities in which to conduct them.”  There is no basis for subjecting the regulation to strict scrutiny.

In further support of its conclusion, the majority cited the U.S. Supreme’s decision in Locke v Davey, 540 U.S. 712 (2004), where the Court said: “where motivated by Establishment Clause concerns, a governmental decision to exclude specified religious causes from eligibility to receive state educational subsidies is neither a violation of free exercise, nor even subject to strict scrutiny under Lukumi.”  The majority saw a clear connection to Locke: “Washington [State’s] exclusion of students of theology from eligibility for the state’s [college scholarship] subsidies was not subject to strict scrutiny under Lukumi because the exclusion was enacted in the interest of establishment concerns, we can see no reason why the rule should be any different in this case.”

The panel also disagreed with the district court’s view that Reg, I.Q. is constitutionally infirm because it discriminates against religions that hold worship services while subsidizing those that do not.  The majority pointed out that all religions are eligible for the subsidy provided that they do not conduct religious services in school facilities.  While acknowledging that the regulation has a disparate impact on a religious sect like BHF that does conduct religious services, the majority found that “disparate impact does not, in itself, constitute viewpoint discrimination.”  “[I]t is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.”  Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 130 S.Ct. 2971, 2996 (2010).  The majority concluded: “The Board is not compelled to permit a practice it has a justifiable reason for excluding just because the exclusion may affect one religion that practices the excluded conduct while not affecting other religions that do not.”

The majority discussed the district court’s ruling that the Establishment Clause would only furnish a justification for NYCBOE’s ban on religious worship services if allowing such services in school facilities would in fact violate the Establishment Clause.  The majority found the district court’s rule unworkable because it would compel the school board to risk violating one religious clause or the other if it guessed wrong in regard to the Establishment Clause’s exact contours.  It stressed that, based on current Supreme Court and Second Circuit precedent, NYCBOE could not with any confidence predict whether it would be found to have violated the Establishment Clause if it allowed BHF and other sects to conduct subsidized worship services.  Instead, the majority determined that the Supreme Court’s reasoning in Locke dictated the opposite result.  It found that just as the state of Washington was free in the service of Establishment Clause concerns to exclude theology students from state scholarships, NYCBOE was similarly justified in declining to subsidize religious worship services.

The majority also determined that the Second Circuit had consistently rejected the district court’s rule.  It pointed out, as it had explained in Bronx Household IV, that NYCBOE had “substantial reasons for concern that hosting and subsidizing the conduct of religious worship services would create a substantial risk of liability under the Establishment Clause.”  Given that Christian religious sects dominate school facility use on Sunday, the one day school buildings are freely available to the public, it supports a reasonable concern on the part of NYCBOE that the public will come to view it as endorsing religion.

As it had in Bronx Household IV, the majority declined to reach the question whether NYCBOE would violate the Establishment Clause by allowing the subsidized use of the school facilities for religious worship services.

The majority, therefore, concluded:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny. 

Finally, the majority rejected the district court’s ruling that Reg. I.Q. violated the Establishment Clause because “[i]t compels the Board to become excessively entangled with religion by deciding what are religious worship services.”  It pointed out that BHF was making the same argument that it had in Bronx Household IV. The majority rejected it again because whatever merit the argument had under other circumstances, it had no application in the present case because of BHF’s admission on the application that it intended to hold Christian religious worship services.  As a result, NYCBE had to do no more than to read the application; no scrutiny or detailed investigation was necessary.  The NYCBOE policy does not require the school district to make an independent determination of whether the applicant’s conduct constitutes a religious worship service.  It found, instead, that NYCBOE’s “policy is to rely on the applicant’s own characterization as to whether the applicant will conduct religious worship services.”

According to the dissent, NYCBOE’s policy, which prohibits after hours “religious worship services in public schools—limited public fora that are otherwise open to all— violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”  It rejected the majority’s characterization of Reg. I.Q. as a content-based exclusion as opposed to a viewpoint exclusion.  The dissent argued that the regulation is viewpoint discrimination “because it disallows expression solely because the expression is from a religious viewpoint.”  It concluded that the “majority’s attempt to differentiate between the conduct of an event, here labeled ‘services,’ and the protected viewpoints expressed during the event is futile because the conduct of ‘services’ is the protected expressive activity.”

Viewing Reg. I.Q. as viewpoint discrimination, the dissent subjected the regulation to strict scrutiny.  Applying that standard, it concluded that NYCBOE’s interest in avoiding a potential Establishment Clause violation was not a compelling governmental interest that would satisfy strict scrutiny.

The dissent contended that NYCBOE’s belief that allowing religious worship services in school facilities would violate the Establishment Clause was not reasonable because U.S. Supreme Court “precedent has foreclosed the possibility that  an Establishment Clause violation would result if religious worship services were allowed in school facilities in these these circumstances.”

The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)

[Editor's Note: In June 2012, Legal Clips summarized the district court's decision in BHF v. NYCBOE, which issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.  The district court rejected NYCBOE’s argument that its Facilities Use policy did not burden the First Amendment free exercise rights of outside religious groups seeking to use public schools.  Instead, it found that the policy failed the compelling interest prong of the strict scrutiny test under the Supreme Court’s Free Exercise Clause analysis. The court also found that the policy failed the second prong of the strict scrutiny test because the policy was not narrowly tailored to advance NYCBOE’s interest in avoiding an Establishment Clause violation.  In addition, it concluded that the policy violated the Establishment Clause under the Lemon test’s entanglement prong.  It stated: “Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.”]

Illinois district to revise policy to permit board member access to district records and buildings

Hinsdale High School District 86 (HHSD86) is revising its policy regarding school board members’ access to HHSD86 documents, recordings, and buildings, says the Sun-Times.  The policy revision is part of a settlement agreement in a suit brought by former board member Dianne Barrett against the then board president and district superintendent.

The suit claimed the board should not be able to bar Barrett from listening to audiotapes of closed session meetings she did not attend.  She also sued for access to special education documents that the district determined were confidential.  Following the filing of the suit, the board, in March 2012, revised district policies to limit board members’ access to district records and property.  That policy, still in effect, requires that a board member demonstrate why the requested record will help him fulfill his legislative or investigatory duties as a board member.

The proposed policy states that members are entitled to “unlimited access to documents necessary and relevant to a board member’s exercise of official duties . . . including personnel and student records, with no requirement that any reason for the request be stated.”  The proposed policy also would give board members the right to listen to closed session tapes regardless if they actually attended the session.  A request to listen to a tape must be granted within five business days, unless the tape no longer exists or a longer time period is agreed upon.

The policy would prohibit abuses of such privileges, such as using district information purely for personal reasons or making “voluminous or otherwise unreasonable requests” that would burden the district’s resources.  A two-thirds vote of the school board would be necessary to rule that a request is abusive.

The revised policy also would give board members unlimited access to HHSD86 properties during school hours and other times when the buildings are normally open to the public or staff.  The member could move through the school without being accompanied by district staff.

Source: Sun-Times, 4/14/14, By Kimberly Fornek

[Editor's Note: In July 2010, Legal Clips summarized an article in the Wheaton Leader reporting on Barrett's suit against HHSD86.]

Kansas governor expected to approve bill rescinding teacher tenure

According to an Associated Press (AP) report in The Topeka Capital-Journal, Kansas Gov. Sam Brownback will approve a provision to end teacher tenure that the state legislature added to its court-mandated education funding plan. Although signing the anti-tenure proposal into law could complicate the governor’s re-election by energizing thousands of angry educators to work against him, he and his high-ranking Republican allies in the legislature already have signaled their belief the measure should become law.

Supports of the provision argue the law will make it easier to remove bad teachers from classrooms.  Brownback contends the measure is part of broader legislation increasing aid to poor school districts, and that the funding probably would have to be sacrificed to save tenure.

In addition, the Kansas Supreme Court has given the legislature a deadline of July 1 to enact a school funding scheme, which leaves little time to start over if the governor vetoes the bill because of the anti-tenure provision.  “We need to continue funding our schools,” Brownback spokeswoman Eileen Hawley said, after promising the governor will “take a very careful look” at all the bill’s provisions.

The state Supreme Court ruled in March that past, recession-driven cuts in aid to poor districts created unconstitutional funding gaps between them and wealthier ones.  Reversing those cuts will cost $129 million in the 2014-2015 school year, and the plan approved by lawmakers contains the full amount. GOP conservatives insisted on tying spending to policy changes, including the anti-tenure proposal.

Brownback praised the plan immediately after its passage, pointing to the new dollars for schools.  The Kansas National Education Association (KNEA), the state’s largest teachers’ union, on the other hand, has said the issue isn’t money.

Supporters of the bill assert that the anti-tenure provision doesn’t prevent local school districts from preserving existing due-process rights in collective bargaining agreements with teachers.  “Honestly, this is a local control bill,” said Senate Vice President Jeff King.  “The impact of this bill has been greatly overblown.”  Ending tenure was the bill supporters’ intent, and they argue it is a good thing, giving administrators more flexibility in improving their schools.

The KNEA scoffed at the suggestion that the anti-tenure provisions are milder than depicted, and spokesman Marcus Baltzell predicted the changes will promote a “culture of cover-up, harassment and bullying.”  Although there was initial debate about whether the governor could strike the anti-tenure language from the bill with a line-item veto, the growing consensus among experts is that he can not.

Thus, to kill the anti-tenure proposal, Brownback would have to veto the entire bill — killing the provisions that satisfy the Supreme Court’s mandate to provide “equity” in funding between poor and wealthier school districts. Baltzell argues for Brownback to “strike the whole thing” and bring about “a clean funding bill.”

Source: The Topeka Capital-Journal, 4/13/14, By John Hanna (AP)

[Editor's Note: In March 2014, Legal Clips summarized an article in the Wichita Eagle reporting that the Kansas Supreme Court issued a long-awaited decision finding wealth-based disparities in funding between school districts in the state to be unconstitutional, and ordered the legislature to address the matter by July 1, 2014.  The court declined to hold that the amount of state education funding violated the state constitution.

In February 2012, Legal Clips summarized an AP article in the News-Press reporting on Gov. Brownback’s proposal to post teacher evaluations on school district websites.  It received harsh criticism from both Republicans and Democrats on the Kansas House Committee on Education, who called it “a disaster” and “pretty toxic.” Rep. Jana Goodman said the proposal was a veiled attempt to place all blame for student performance on teachers.] 

Montana district agrees to redraw, condense voting precincts to settle voting rights suit by Native Americans

According to an Associated Press (AP) report in the Billings Gazette, the Wolf Point School District (WPSD) has agreed to redraw voting zones for school board elections after the American Civil Liberties Union of Montana (ACLU-MT) filed suit in federal court alleging that the current zones are drawn to favor white voters over Native American ones in violation of the Voting Rights Act. The settlement, which was approved by federal district court Judge Brian Morris, calls for reducing the total number of school board members from eight to six, and creating five districts with nearly the same number of residents.  One board member will be elected on an at-large basis.

ACLU-MT filed the suit in August 2013 after learning that members of a majority white voting area with 430 people had been electing three board members, while a predominantly Native American voting area with 4,205 people elected five members.  “The old districts clearly violated the principle of one person, one vote by creating a school board where the political power of the Native American community was diluted by the unconstitutional imbalance of the voting districts,” said Jon Ellingson, attorney for the ACLU-MT.  “Now every person’s vote will count equally.”

The Wolf Point school website says 80 percent of its students are Native Americans.

Source: Billings Gazette, 4/14/14, By AP

[Editor's Note: ACLU-MT's press release announcing settlement of the suit states: Wolf Point School District officials recently conceded, in response to an ACLU of Montana lawsuit, that its voting districts are malapportioned, and violate the “one person, one vote” requirement of the 14th Amendment of the U.S. Constitution.  According the release, the settlement calls for electing one board member from each of five voting districts to serve on the high school and elementary school boards and one member elected at-large district-wide to serve only on the high school board.  Each of the new single-member districts will have populations that vary no more than 1.54 percent.

In August 2013, Legal Clips summarized an AP article in the Great Falls Tribune reporting on the filing of ACLU-MT's suit against WPSD. The suit charged that school board voting districts are arranged to favor white voters in a predominantly Native American area. ] 

Christian student club sues Florida district seeking greater access to school resources

According to News 13, the Fellowship of Christian Athletes (FCA) has filed suit against the Lake County School District (LCSD).  FCA’s suit charges it is being discriminated against by being excluded from announcements, the yearbook, and virtually every other school publication or website.  Liberty Counsel (LC) filed the lawsuit on FCA’s behalf.  According to Steven Guschov, Engagement Director for LC, “All other clubs are allowed to do this, but FCA is not allowed to do so at Mt. Dora High School.  That’s discrimination and that’s illegal.”

School board policies break up groups into three categories: curricular, co-curricular, and non-curricular.  The Fellowship of Christian Athletes falls into the last category, and under board policy they would therefore only get equal access to similar clubs, not the same access as co-curricular groups.  “The Supreme Court has said loud and clear any non-curricular club such as FCA must have the same type of access as any other type of club, non-curricular or curricular, in a public high school,” Guschov said.

Source: News 13, 4/14/14, By Dave D’Marko

[Editor's Note: LC's press release announcing the suit states that school officials at Mount Dora High School are discriminating against the FCA by denying it equal access to school facilities given to other student clubs.  Some of benefits allegedly denied CFA include: announcements in the hallways and on the school’s marquee, a club webpage on the District’s website, and a stipend for the club’s faculty advisor.

The legal complaint includes 5 federal law counts: 1) Equal Access Act; 2) Freedom of Speech Clause; 3) Equal Protection Clause; 4) Free Exercise of Religion Clause; and 5) Establishment Clause.  The complaint also contains four state law counts that mirror the federal constitutional claims.

In March, 2014, Legal Clips reported on another student club suit against the Lake County School District, this one by a middle school gay-straight alliance club, and on a court order denying the club a preliminary injunction.]

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