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Fourth Circuit panel hears oral argument in case over expansion of Davis deliberate indifference standard

On December 10, 2014, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit heard oral argument in Does v. Board of Education of Prince George’s County, No. 13-2537. The appeal addresses the issue of whether the deliberate indifference standard established for student-on-student sexual harassment claims, in Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), should be relaxed to incorporate common law negligence principles .

Council of School Attorneys (COSA) member Leslie R. Stellman of PK Law in Townson, Maryland attended the argument and has provided the following synopsis of the oral argument:

Oral argument on an appeal from the District Court for the District of Maryland’s dismissal, on summary judgment, of a Title IX and negligence claim arising out of  alleged same-sex student-on-student sexual harassment was heard before Judges Harvey Wilkinson, Paul Niemeyer, and Robert King. Abbey Hairston argued the case for the The Prince George’s County Board of Education, while Laura Abelson of the Baltimore law firm Brown Goldstein argued for the Does.

Ms. Abelson began by contending that there were numerous disputed facts that should have gone to the jury, and that those facts added up to “deliberate indifference.”  She claimed that the school system failed to reasonably respond to harassment and that the district court misapplied the standard for summary judgment.

Judge Wilkinson immediately expressed concern that the Does’ “problem is with the Davis standard,” that it was “not just negligence,” and that “deliberate indifference” requires that the Board was “clearly unreasonable” in its response to alleged harassment. He accused the Does of trying to create a “triable issue of negligence,” when the standard is much higher. Ms. Abelson replied that under Davis, deliberate indifference could be demonstrated by merely showing that the school’s actions made a student more vulnerable to harassment. She contended that the school’s responses were not calculated to be effective.

Judge King observed that, with multiple grades being taught in the same room in a Montessori School, there is more going on for the teacher to be responsible for observing. Judge Wilkinson pointed out that the school contacted the parents of the alleged harasser and placed the student on behavioral probation, then gave him a week of in-school suspension, which the Does’ lawyer conceded was served in the school office.

After some discussion between the Does’ counsel and Judge Neimeyer about alleged incidents which the District Court failed to consider, a discussion ensued about the options given to allow J.D. (the plaintiff) to avoid being in the bathroom at the same time as his alleged harasser (M.O.).  Judge Wilkinson then opined: that this was not a school system that, as in Davis, “kissed the whole problem off. “  He recognized that there are a variety of student interactions every day for administrators to deal with and if they were to “jump down M.O.’s throat, his parents would sue the school.”

Judge Wilkinson referred to the events in the case as “isolated events between two people” in a classroom with constantly changing dynamics, and that “it is all a teacher can do to give instruction.”  He insisted that the standard of avoiding deliberate indifference is not necessarily making the harassment stop altogether.

When the Does’ counsel invoked the OCR’s DCL standard, Judge Wilkinson insisted that “that is not the standard. That may deal with funding between the federal Department of Education and local school systems.”  He rejected the Does’ lawyer’s contention that if the Department of Education funding is contingent on compliance with the DCL, then a jury should follow the DCL.

When Abbey Hairston commenced her argument on behalf of the Board, Judge King confirmed with her that the lawsuit did not seek injunctive relief, only monetary damages. This later led both Judges Wilkinson and King to severely criticize the Does’ lawyer (during her rebuttal argument) about suing the acting principal for money. Ms. Hairston pointed out that the school system recognized the Does’ concerns, but had to take into account the alleged harasser’s rights, the fact that none of the incidents were reported in a timely fashion, and that nonetheless the school system acted as if each incident were as reported by J.D.

When asked by Judge Wilkinson what concrete steps were taken to resolve the problems, she described the school’s code of conduct, which was invoked in an effort to stop any harassment.  Judge Wilkinson indicated that, having taught school, he knew that “its hard being a teacher.”  Judge Wilkinson agreed that the school “came down hard” on M.O., but that expelling him would have resulted in a lawsuit.

During J.D.’s rebuttal argument, Judge King stated that “you can’t expect us to second guess schools. You want damages against the school and its decision-makers, who you would make personally liable for damages for making the wrong decision. You would have the Fourth Circuit intervene whenever a decision is made where to seat a child or which room to put him in. We would be opening the door to 1,000’s of lawsuits against schools, teachers, staff, and the courts will take over the role of the school administrators. It bothers me that people have to make tough decisions, and even when they are trying, there are already enough difficulties running a school and teaching students. It would be impossible to recruit teachers if the courts were hostile to educators. Whatever you think in hindsight, the school system here tried. You don’t need a jury to determine that there was no deliberate indifference.”

Judge Wilkinson concluded the argument by saying, “we’re not in the business of second guessing teachers’ decisions in the classrooms. We will not make them personally liable.”

As they left the bench to shake hands with the attorneys (a 4th Circuit tradition), Judge Niemeyer told Ms. Hairston that she had presented an “excellent argument.”

I cannot predict the results with certainty, but I would be more than willing to bet quite a bundle on the outcome of this case. The judges were clearly unsympathetic to the plaintiffs, and were unwilling to even consider the DCL for guidance on burdens of proof in Title IX cases as against the Davis deliberate indifference standard. For these reasons, I am quite optimistic that the case will be decided favorably, and that the deliberate indifference standard will be upheld once again.

[Editor’s Note: In June 2014, the National School Boards Association (NSBA) and the Maryland Association of Boards of Education (MABE) filed an amicus brief in support of the Prince George’s County Board of Education. The Legal Clips Sua Sponte item announcing filing of the brief  stated:

NSBA/MABE’s brief urges the Fourth Circuit to reject the plaintiffs’ plea to expand Davis using the U.S. Department of Education‘s (ED) Office for Civil Rights (OCR) enforcement guidance and expert opinions on proper investigations or interventions.

In addition to arguing against adoption of OCR’s enforcement guidance on the ground that it fails to meet the Davis standard’s higher bar, the brief asserts that local school officials are in the best position to respond to known incidents of harassment or bullying, as demonstrated by long-standing judicial precedent deferring “to school officials’ decision-making in matters of student discipline and maintaining an orderly, safe learning environment, including peer harassment claims under federal civil rights statutes.”]


Custodial employee’s federal lawsuit claims Michigan district covered up past asbestos contamination at two schools

The Detroit Free Press reports that Theresa Ely, a custodian with Dearborn Heights Schools District No. 7 (DHSD7), has filed suit in federal court against DHSD7. The lawsuit alleges that the school district has put the health of students and staff at two schools at risk by falsifying a report and covering up past asbestos contamination. DHSD7 officials acknowledge that they made a mistake by using electric sanders, which contained asbestos, on vinyl tiles, but insisted this week there is no evidence asbestos was released into the air where it could damage human health. All parties agree that there is no current asbestos problem at either of the schools.

Ely was reprimanded by DHSD7 in 2013 and again this year after complaining about district orders to use sanding equipment to remove wax from the tiles, and for warning co-workers that their health was endangered when they did the work without protective equipment. School district officials insist that the disciplinary actions were justified because the Michigan Occupational Safety and Health Administration (MIOSHA) investigated and found no problems.

Jeff Bartold, DHSD7’s superintendent until July 2014 and who is now the interim business manager, also cited a consultant’s report that gave one of the district schools  a clean bill of health. However, MIOSHA records show that the agency fined the district $27,000 in 2013 for “serious” health and safety violations related to the work on asbestos tiles at the two schools referenced in the lawsuit. In addition, the environmental consultant cited by the district, Don Clayton of D&D Consulting, said he never inspected either school for asbestos, and that he never wrote nor had any knowledge of the report the district attributed to him.

Clayton told an OSHA investigator he suspects somebody in the district doctored an earlier report Clayton wrote on a different subject to forge a false report on the asbestos issue. Bartold told a federal OSHA investigator last year that as a “school of choice,” his district draws half its students from outside its boundaries, and he was concerned Ely’s comments would hurt recruitment.

Both Bartold and John Nicholl, DHSD7’s supervisor of plant operations, insist they don’t know why Clayton has denied authorship of the report district officials cited in refuting Ely’s claims. They also deny a cover-up.

Ely, who in a separate MIOSHA complaint alleges she was retaliated against when the district laid her off for the summer of 2013, said that about 20 workers were likely exposed but only she and one other worker, who also complained, have been tested. She said that the district hasn’t even paid for those tests. Ely said tests confirm she was exposed to asbestos, but so far she has not been diagnosed with a related disease.

Ely and her attorney Robert Fetter said the D&D Consulting report cited by Bartold and circulated by Nicholl is a sloppy cut-and-paste job built from an unrelated report. They note that the report twice references the “home,” rather than the school and also said the inspection was difficult “due to the fire damage,” when there had been no fire at the referenced school. Her suit also alleges that last year a kitchen employee at one of the referenced schools died of mesothelioma, an asbestos-related disease.

Source: Detroit Free Press, 12/1/14, By Paul Egan

[Editor’s Note: Ely’s legal complaint is a single count First Amendment retaliation claim based on her exercising her free speech rights to expose the asbestos cover up.

In February 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in Morey v. Somers Cent. Sch. Dist. holding that a school custodian, who complained to his supervisors about asbestos contamination on a number of occasions, failed to state a valid claim for First Amendment retaliation because his speech was made pursuant to his duties as the head custodian. The panel concluded that the fact that he never spoke publicly about his concerns, relying instead exclusively on internal channels, confirmed that he spoke pursuant to his duties.] 

Sale of millions of student records during tech company’s bankruptcy proceeding raises privacy concerns

According to Education Week, ConnectEDU Inc., a company that is seeking protection under Chapter 11 of  the federal bankruptcy law, transferred ownership of 20 million student records. The sale of ConnectEDU occurred without the company abiding strictly to its privacy policy, creating a cautionary tale for school districts, and a complex challenge for the ed-tech industry.

ConnectEDU had amassed millions of records from school districts, as well as individual students and their parents. Depending on what a district or individual specified, a record could include a student’s test scores, grade point average, learning disability, email and home addresses, phone number, and date of birth—among other information. The contracts with various education entities and a trove of individual student records were a substantial part of the company’s remaining value as it dissolved.

The “company sale” portion of ConnectEDU’s privacy policy opened with: “Information collected through our website is considered a trade secret of ours.” In that same policy, ConnectEDU had promised its users that they could delete their personally identifiable records before any sale.

The Federal Trade Commission’s Consumer Protection Bureau (FTCCPB) brought those policy provisions to the attention of the bankruptcy court. FTCCPB  asked the court to have ConnectEDU destroy all personal data; or to notify users that their personal information was about to be sold and that they could have it deleted; or to appoint a privacy ombudsman to ensure protection of the users’ privacy.

However,these requests were not honored because ConnectEDU had no employees as of the bankruptcy filing date. Instead of registrants receiving notice before the sale, it was left to the companies that bought the failed company’s assets to carry out the notifications after the records had been transferred.

“This is a significant red flag for the treatment of student information by education technology companies,” said Joel R. Reidenberg, a law professor at Fordham and Princeton universities. “Many ed-tech companies today are small startups, collecting lots of data. Many of them are not going to succeed. What’s the protection when these companies go bankrupt?” For those that do succeed, grow, and become part of an acquisition, he expressed similar concerns: “What’s the protection when they merge?”

Seattle schools had demanded that all records be deleted under its contract when ConnectEDU declared bankruptcy in the spring, but the district had to wait until Graduation Alliance ( one of the companies that bought ConnectEDU’s assets) received the data for that order to be carried out, according to a statement from the school system. The school system indicated that it had been assured that all student data were “fully secured” through the process.

“The ConnectEDU Chapter 11 story demonstrates that student data is treated as a marketable asset,” said Sue Peters, a member of the Seattle school board. “Part of the problem is that parents have their children’s information transferred around, and it’s up to the parents to actively retrieve and protect it.” Possessing data about students is central to using education technology effectively, and protecting that information is paramount, industry leaders say.

To that end, nearly 50 companies that sell products in the K-12 marketplace have signed a “Student Privacy Pledge,” which goes into effect on January 1, 2015. Among the pledge’s dozen provisions is one about acquisitions. It states that, in the case of a merger or acquisition, the company signing the pledge will “allow a successor entity to maintain the student personal information … provided the successor entity is subject to these same commitments for the previously collected student personal information.”

Source: Education Week, 12/9/14, By Michele Molnar

[Editor’s Note: In February 2014, Legal Clips summarized an article in Education Week reporting that the U.S. Department of Education (ED), through its Privacy Technical Assistance Center (PTAC), has issued new guidance on the proper use, storage, and security of the massive amounts of data being generated by new, online educational resources. The guidelines are ED’s attempt to light the way through the rapidly evolving world of educational technology and student data privacy.

In order to foster better understanding and help districts implement “best practices,” the guidelines contain seven high-level recommendations for schools and districts.  The guidelines are non-binding and contain no new regulations. Instead, they encourage “self-policing” by industry and better policies and practices by school systems as first steps towards protecting the privacy of student records.]



Georgia appellate court rules parents of minor who libeled classmate by creating false Facebook account and posting defamatory statements and images to that account using a computer and Internet access provided by the parents can be held liable based on a theory of negligent supervision

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

Abstract: The Georgia Court of Appeals has ruled that the parents of a minor, who libeled a classmate by creating a false Facebook account and posting defamatory comments and images to that account, using a computer and Internet access provided by the parents, can be held liable for negligent supervision. However, the appellate court ruled that the parents could not be held liable as landowners imputed with a duty to remove the defamatory content that had been placed on the false Facebook account from their property. It, therefore, reversed in part and affirmed in part the trial court’s grant of summary judgment to the parents of the minor who libeled his classmate.

Facts/Issues: Dustin Athearn, a who was 13 years old, and his friend Melissa Snodgrass decided to have some fun at a classmate’s expense by creating a fake Facebook page for that person. Dustin used a computer provided by his parents, Sandra and Michael Athearn, and the family Internet account. He created a new Facebook account in his classmate Alexandria (Alex) Boston’s name. Dustin used an altered picture of Alex for the Facebook profile. He and Melissa added information to the unauthorized profile, which indicated, inter alia, that Alex held racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members.  Within a day or two the account was connected as “Facebook Friends” to over 70  other Facebook users.

Dustin and Melissa continued to add information to the persona’s profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs. Alex suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex’s parents, Amy and Christopher Boston, approached the school’s principal, Cathy Wentworth, for help. On May 10, 2011, Wentworth called Dustin and Melissa to her office. They admitted their involvement, and each signed a written statement.

Wentworth assigned them to in-school suspension for two days for their harassment of Alex. She called their parents. She also sent home a “Middle School Administrative Referral Form” to explain the disciplinary action. The Referral Form included the following “Description of Infraction: [Dustin] created a false Facebook page in another student’s name, pretended to be that person, and electronically distributed false, profane, and ethnically offensive information.”   Dustin’s mother, Sandra Athearn, reviewed the form, signed it and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him from seeing his friends after school for one week.

The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012. During the 11 month period that the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing.

They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. They also made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

On April 3, 2012, The Bostons filed suit in state court against Dustin and his parents. The suit claimed that Dustin had defamed Alex by creating and posting to the false Facebook account. It also alleged that Dustin’s parents had breached their duty as parents to supervise their minor child and breached their duty as landowners to remove defamatory content existing on their property. In addition, the suit alleged that Dustin’s actions constituted intentional infliction of emotional distress.

The Athearns filed a motion for summary judgment and the trial court granted their motion.The Bostons appealed the case. The Bostons’ appeal contended that questions of material fact existed regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence. In addition, they contended that questions of material fact remained regarding whether the Athearns, as landowners, breached a duty to remove defamatory content existing on their property.

Ruling/Rationale: The Georgia Court of Appeals affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of the Athearns. Addressing the question of whether the Bostons had stated a claim of negligent supervision that should have gone to a jury, the appellate court stated that the “key question is the foreseeability of the harm suffered by the plaintiff, that is, whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct.” It pointed out that the question of whether the parents failed to exercise ordinary care in supervising or controlling their child is in general one for a jury to decide “when the circumstances support an inference that the parents were on notice that, absent their intervention, injury was likely to result from the child’s conduct.”

While conceding that the Atherans may not have been able to anticipate Dustin’s misuse of the computer and Internet in the first instance to cause harm with malicious intent, the appellate court stressed that “they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.”  As a result, the court rejected the Athearns’ argument that they could not be held liable for negligently supervising Dustin’s use of the computer and Internet account. It concluded: “While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.”

The appellate court determined that given the nature of libel, that the initial tortious act could continue to be published to additional readers after the first publication, “the defamatory content persists in a public forum without public correction or retraction.”  It concluded that “a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward.” Based on the finding, the appellate court stated: “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions).” It, therefore, reversed that part of the trial court’s decision granting the Athearns summary judgment on the negligent supervision claim.

However, the appellate court upheld that portion of the trial court’s decision granting the Athearns summary judgment on the claim that they had breached their duty as landowners to remove defamatory content existing on their property. After stating, it would set “aside the novel and abstract questions the Bostons’ argument raises regarding where Internet content is ‘exhibited,’” the appellate court pointed out that the Bostons “failed to identify any evidence that, apart from exercising their parental power to control Dustin’s conduct, they had the ability to remove the defamation.” It found: “There is no evidence that the Athearns unilaterally had the ability to take down the unauthorized Facebook page by virtue of the fact that it was created on a computer in their home, because it was created using an Internet service they paid for, or otherwise.” The court held that because there was no evidence to support this theory of recovery, the trial court did not err in granting summary judgment to the Athearns.

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

[Editor’s Note: As the facts clearly spell out the online student speech/expression in this case took place off-campus using a home computer. Nonetheless, the Bostons first took their complaint to school officials. In July 2010, Legal Clips summarized a New York Times article reporting that schools these days are confronted with complex questions on whether and how to deal with cyberbullying, which is an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, and even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.  

Although a number U.S. Court of Appeals Circuits have weighed in on the question of whether school officials may discipline students for off-campus online speech consistent with the First Amendment, the U.S. Supreme Court has declined to review cases from the Second, Third and Fourth Circuits] 


University of New Mexico student’s free speech claim survives motion to dismiss in federal court

Pompeo v, Board of Regents Univ. of New Mexico, No. 13-0833 (D.N.M. Sept. 29, 2014)

Abstract: A federal district court in New Mexico rejected the student’s assertion that her curricular speech was governed by the standard enunciated in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which holds that restrictions on curricular speech are permitted provided they are reasonably related to legitimate pedagogical concerns subject to the caveat that such restrictions are viewpoint neutral. However, it concluded that the student had pleaded facts sufficient to show there was a First Amendment conflict between the ” all-views-are-welcome” promised in the syllabus versus the instructor’s “only-those-views-I-personally-agree-with-are-acceptable” implementation of the classroom forum.

The court said, “The Court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in “incendiary” and provocative speech on a topic and then punishing a student because he or she did just that.” It found that the student had not forfeited her First Amendment protections because she expressed views on homosexuality that some might find offensive.

The court held that the student had stated a plausible case against her instructor for violation of the student’s First Amendment free speech rights. It, likewise, found that the claim against the instructor’s supervisor was plausible either through the theory of ratification of the instructor’s actions or independently based on supervision of the independent study course to which the student was assigned after being forced to withdraw from the instructor’s class.

Finally, the district court concluded that the student’s First Amendment rights were clearly established at the time the alleged violation took place, and, therefore, the qualified immunity issue was no longer in play.

Facts/Issues:  Monica Pompeo enrolled in a class at the University of New Mexico (UNM) titled “Images of (Wo)men: From Icons to Iconoclasts.”  Adjunct Professor Caroline Lawson Hinkley chose the title to spark “incendiary” class discussions. The syllabus assured students that “it’s quite clear that we do not expect anyone to necessarily agree with the positions and arguments advanced in our work. There’s controversy built right into the syllabus, and we can’t wait to hash out our differences.”

One of the class assignments was to view the film Desert Hearts. Pompeo submitted a four-page critique of the film Desert Hearts that was harshly critical of the lesbian characters portrayed in the film and of lesbianism in general. Ignoring representations in the syllabus concerning her openness to differing views, Hinkley refused to read beyond the first two pages of Pompeo’s critique, characterizing Pompeo’s views as inflammatory and offensive. Hinkley returned Pompeo’s critique without assigning a grade.

At a subsequent meeting with Pompeo, Hinkley accused her of using “hate speech.” Hinkley told Pompeo that it would be in her best interest to drop the class. Due to Hinkley’s hostility, including her refusal to assign a grade to Pompeo’s critique, she withdrew from the class. Pompeo filed suit in federal district court against UNM, Hinkley, and Hinkley’s supervisor, Susan Dever. She alleged that the defendants had violated her First Amendment free speech rights. The defendants filed a motion to dismiss the suit.

Ruling/Rationale: The district court denied the defendants’ motion to dismiss. It first laid out the two prong test for qualified immunity, i.e., (1) whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right;” and (2) “whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.” The court pointed out that courts have discretion in deciding which of the two prongs they address first.

The court then took up the analysis of the First Amendment claim, applying a three part test: (1) is plaintiff’s speech protected speech; (2) in what type of forum did plaintiff’s speech occur; and (3) do the justifications for restricting speech proffered by defendants satisfy the First Amendment standard applicable to the type of forum in question. It pointed out that the defendants conceded that Pompeo’s speech enjoyed First Amendment protection and the parties agreed the speech occurred in a nonpublic forum.

As a result, the district court focused the third part of test. After noting that the defendants bear the burden of justifying their restrictions on speech, it turned to the defendants’ assertion that “a university can restrict a student’s curricular speech so long as the restrictions are reasonably related to legitimate pedagogical concerns.” Pompeo agreed with that standard save the caveat that any restrictions must be viewpoint neutral.

The court stated that it would be inclined to accept Pompeo’s contention regarding viewpoint discrimination if “this case involved a non-curricular nonpublic forum.” However, because the case involves curricular speech, it found that “in this specific context the established general rule prohibiting viewpoint-based restrictions must yield to the Court of Appeals’ conclusion that “Hazelwood does not require viewpoint neutrality.”

The court concluded  that “[v]iewpoint-based restrictions on a student’s curricular speech are allowed, but only if they are reasonably related to legitimate pedagogical concerns.” Nonetheless, the district court determined, based on the facts as pleaded, that Pompeo had stated a valid claim that her free speech rights were violated when Hinkley sanctioned Pompeo for submitting a critique of the movie that diverged from Hinkley’s point of view.  According to the court:

The Court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in “incendiary” and provocative speech on a topic and then  punishing a student because he or she did just that. Simply because Plaintiff expressed views about homosexuality that some people may deem offensive does not deprive her views of First Amendment protection.

It found Hinkley acted against Pompeo based on a personal disagreement with Pompeo’s ideology rather than out of legitimate pedagogical concerns.

The court also concluded that Pompeo had a valid claim against Dever based on the allegation that Dever “ratified” Hinkley’s censorship of Plaintiff’s views. It determined: “Plaintiff has adequately alleged circumstances demonstrating that Dever (1) possessed responsibility for the continued operation of Hinkley’s unconstitutional policy of censoring Plaintiff’s speech, (2) Dever consciously perpetuated the policy of censorship, thereby causing the deprivation of Plaintiff’s First Amendment rights, and (3) that Dever acted to suppress a viewpoint that she, like Hinkley, found personally offensive, rather than for a legitimate pedagogical reason.

Pompeo v, Board of Regents Univ. of New Mexico, No. 13-0833 (D.N.M. Sept. 29, 2014)

[Editor’s Note: On November 4, 2014, Courtney Such of The College Fix reported on the district court’s ruling. The article points out that the courts’ decisions on this issue are not a foregone conclusion based The College Fix’s review of litigation. It cited a 2008 Third Circuit opinion in DeJohn v, Temple University that issued a broad ruling in favor of classroom speech. The Third Circuit said that Temple University’s sexual harassment policy “provide[d] no shelter for core protected speech” and that “discussion by adult students in a college classroom should not be restricted.”]


Florida court allows parents of students receiving private school scholarships through state’s tuition tax credit program to intervene as defendants in suit challenging the program

Flaglerlive.com reports that Leon County Circuit Court Judge George Reynolds III has granted the request of a group of parents, whose children are the recipients of private school scholarships through the Florida Tax Credit Scholarship program, to intervene as a defendant in a lawsuit challenging the validity of the program under the state constitution. The parents’ group argued that it should be allowed full-party status because the children of those parents would lose access to the scholarship program if the court finds it unconstitutional.

The plaintiffs, a coalition of public school advocates, including the Florida Education Association, which is the state’s largest teachers union, did not object to the parents’ participation in the suit, but opposed the parents being granted full party status. Lynn Hearn, an attorney for the coalition, said, “If they are granted their request to come in as a party, a defendant standing shoulder-to-shoulder with the state, then they could raise completely unrelated claims.” Karen Walker, a lawyer for the parents, countered that not allowing them to be a party to the suit would make them “second-class citizens.” Judge Reynolds ruled in favor of the parents, offering little explanation.

The Tax Credit Scholarship Program, which could raise as much as $357.8 million this year, provides tax credits to companies that donate money to nonprofit entities that pay for children to go to private schools. Without the scholarship program, critics say, those tax dollars could be used to help fund public education. But supporters say the program provides better opportunities for low- or middle-income children trapped in failing public schools.

Source: Flaglerlive.com, 12/7/14, By Brandon Larrabee

[Editor’s Note: In September 2014, Legal Clips summarized an article in the Orlando Sentinel reporting that a coalition of public school advocates led by the Florida Education Association (FEA), which includes the Florida School Boards Association and the Florida PTA, brought suit against the state of Florida alleging that the Tax-Credit Scholarship Program ( TCSP) violates the state’s constitution because it redirects taxpayer money to religious schools and creates a separate system of state funded schools. The program is expected to provide private-school tuition for nearly 70,000 students from low-income families. Approximately 70% of the schools participating in the program are religious schools. ]

State of Washington’s AG files suit against company accused of providing school districts with fraudulent training leading to filing of false medicaid claims

The Enumclaw Courier-Herald reports that the State of Washington Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU) has filed suit in state court against JT Educational Consultants (JTEC). The state  alleges that JTEC provided fraudulent training to dozens of school districts around the state, leading to tens of millions of dollars in false Medicaid claims.

“These scammers lined their pockets with millions of dollars meant to serve the healthcare needs of Washington children and families,” said AG Bob Ferguson. “This fraud will not be tolerated. If you steal from the Medicaid system, my office will hold you accountable.”

This lawsuit targets a group of individuals, including former school administrators and employees, who built a grossly profitable consulting business by marketing a corrupted version of this program. JTEC was the consulting company for the Centralia School District, which settled related allegations for $372,000 in July.

Washington’s Medicaid program provides a critical safety net of healthcare services to low income residents. Through a reimbursement program known as the Medicaid Administrative Claiming program, participating school districts may receive Medicaid reimbursement for administrative costs they incur that directly support the provision of healthcare services to Medicaid eligible students.

According to the suit, instead of assisting school districts in obtaining reimbursement for legitimate costs incurred helping Medicaid eligible students obtain necessary health care services, JTEC gamed the system and received millions of dollars in “consulting” fees by causing the districts to file tens of millions of dollars worth of false claims between 2005 and 2014. MFCU accuses JTEC of misrepresenting the rules of the program in training presentations, written training materials, and other communications with the districts, so that the districts would submit false claims for reimbursement and the defendants could take a percentage of the ill-gotten funds.

The suit also alleges that when the agency responsible for administering Medicaid moved to implement a computer-based system that would have enabled districts to more easily and accurately identify costs truly reimbursable under the administrative claiming program, JTEC strenuously opposed the effort and fought hard to preserve the paper based system that was central to the survival of their unlawful enterprise. The AG’s suit is seeking restitution of the ill-gotten Medicaid funds and substantial civil penalties for the false Medicaid claims.

MFCU investigators estimate that between 1998 and 2011 JTEC netted $12.6 million in consulting fees from school districts. In recent years, this company alone took between 6% and 8% of the total Medicaid Administrative Claiming reimbursement coming into the state.

Neither the owners of JTEC nor the company’s employees, or contractors, have any special Medicaid training. Most of the employees and contractors are retired school district employees.

Source: The Enumclaw Courier-Herald, 12/4/14, By Staff

[Editor’s Note: MFCU’s legal complaint is based on the State of Washington’s Medicaid Fraud False Claims Act and the anti-fraud provisions of the state’s Medicaid Statute. It spells out in detail how JTEC used the school districts to file false Medicaid claims defrauding the state of  millions of dollars of Medicaid funds.]

Maine court orders school district to pay $75,000 in discrimination suit brought by transgender student

The Portland Press Herald reports that Penobscot County Superior Court has ordered Orono school district to pay $75,000 to Gay and Lesbian Advocates and Defenders (GLAD) and attorney Berman Simmons, who represent transgender student Nicole Maines in her discrimination suit. The order, which was mutually agreed upon by the parties, prohibits the district from refusing to allow transgender students access to school restrooms that are consistent with their gender identity.

GLAD  spokeswoman  Carisa Cunningham said, “This was really just a technical conclusion of the case.” The monetary award covers legal expenses, related costs and a financial award. “A significant portion of that amount is going to the Maines family,” Cunningham said, although she declined to say exactly how the $75,000 would be divided.

The legal dispute involved Maines’ use of the communal girls’ bathroom at her school. After initially allowing her to use the bathroom, school administrators reversed course and barred Nicole from using the communal girls’ bathroom after a male student, at his guardian’s instruction,  followed her into the girls’ bathroom on two occasions.

The Penobscot County Superior Court initially supported the school administrators’ decision, but the Maine Supreme Judicial Court overturned that ruling after Maines appealed.

Source: Portland Press Herald, 12/2/14, By Scott Dolan

[Editor’s Note: In February 2014, Legal Clips summarized the decision by the Maine Supreme Judicial Court in the suit captioned Doe v. Regional Sch. Unit 26 holding that a school district violated a transgender student’s rights under the Maine Human Rights Act (MHRA) when it prohibited her from using the girls’ communal restroom at school.] 


U.S. Supreme Court hears arguments in suit over the notice and comment requirement as applied to federal interpretative rules

On Monday, December 1, 2014, the U.S. Supreme Court held oral argument in Perez v. Mortgage Bankers Ass’n, 13-1041, which involves the issue of whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. SCOTUSblog provided analysis of the argument and also background on the case. By way of background, it pointed out that the Mortgage Bankers Association (MBA) maintained in the Supreme Court that the rule in question is a “legislative rule in interpretive clothing.” However, U.S. Deputy Solicitor General Edwin Kneedler reminded the Court that,  “[T]he question of whether this is an interpretive rule … is not before the Court,” and Justice Kennedy agreed.

SCOTUSblog also pointed out that the question presented assumes exactly what the D.C. Circuit below had assumed – that the rule at issue here is an interpretive rule. Turning to the argument, it noted that some members of the Court expressed concern with the deference issues raised by MBA. Justices Elena Kagan and Sonia Sotomayor wondered whether the government was seeking an “end run” around the notice-and-comment process.

Kneedler tried to deflect this line of questioning by relying simply on the formal distinctions between legislative rules – which, he claimed, have the “force and effect of law” and “define duties and obligations” – and interpretive rules – which, as Kneedler put it, are “designed [only] to inform the public of the agency’s view of the statutes and rules.” Justice Antonin Scalia, who has called on the Court to abandon Auer deference, would have none of it: “Nonsense. [W]hether it’s an interpretative rule or a substantive rule, … you want us to give the same deference to both.” Kneedler agreed with Scalia.

According to SCOTUSblog, Justice Stephen Breyer cut off this line of questioning, perhaps signaling the ruling to come. He noted that the deference question was interesting and nuanced. But presumably because the question presented assumed that the rule at issue is interpretive, he noted that “we need not go into those [deference] matters in this case and I surely hope we don’t.” This comment gave Kneedler another opportunity to remind the Court that the case concerned only the validity of the Paralyzed Veterans doctrine, and not the dividing line between interpretive and legislative rules or the deference due those rules when they are challenged in court.

SCOTUSblog reported that MBA’s lawyer, Allyson Ho, faced tough questioning. Resisting the question presented she contended that the revised DOL interpretation amounted to a “substantive change in the law,”  i.e., a legislative rule. Justice Kagan, rejecting that reasoning, said, “Everything that happened in this case happened on the view that this was an interpretative rule and the question is what followed from that classification.”

SCOTUSblog found Ho’s exchange with Justice Scalia very revealing. Justice Scalia asked whether it was “absolutely essential” to MBA’s case that the rule at issue be classified as “substantive.” Ho agreed. Justice Scalia continued: “And if we disagree with that, you acknowledge that Paralyzed Veterans is wrong.” “Yes,” Ho replied. At that point, Justice Kagan jumped in: “Well … I think that you’ve just said Paralyzed Veterans is wrong then.” Ho then doubled down: “The question in this case is whether [the 2010 DOL rule] is, in fact, an interpretive rule” or, as MBA now maintains, a legislative rule. That’s effectively a concession that MBA loses if the Court is unwilling to go beyond the question presented in the government’s petition.

SCOTUSblog’s analysis of the argument concluded that:

The argument reinforces our view that the Court will bury the Paralyzed Veterans doctrine and hold that a revised interpretive rule need not go through notice-and-comment rulemaking. It is likely that one or more members of the Court will voice concern over the deference given to interpretive rules and, perhaps, the difficulty distinguishing between interpretive and legislative rules. But we think the Court will leave those broader and more difficult issues for another day (or two).

Another perspective on where the Court might land is offered by Federal Regulations Advisor :

SCOTUS has the opportunity to limit Auer deference by affirming the D.C. Circuit, warning agencies that their definitive interpretation must be carefully expressed and is not subject to political whims and flipflops are not an exception to the notice and comment requirements of the APA. At the same time, SCOTUS may recognize that the first interpretation may be overtaken by other realities than politics and limit an affirmance to otherwise unexplained political flipflops. Reversal, on the other hand, could leave interpretative rules open to continued manipulation. SCOTUS should not, however, be expected to revise precedent on the larger issues of the substantive / interpretative tests or the role of deference writ large – those are issues for another day.

[Editor’s Note: In October 2014, Legal Clips published an item announcing that The National School Boards Association, along with several other organizations that advocate on behalf of public sector employers, joined the amicus brief filed by the State and Local Legal Center urging the Court to affirm the U.S. Court of Appeals for the District of Columbia Circuit’s holding that significant changes to definitive interpretive rules are subject to notice and comment requirements.] 

U.S. Supreme Court hears argument in case involving whether online posting amounted to a “true threat” for purposes of a federal criminal statute

On Monday, December 1, 2014, the U.S. Supreme Court heard oral argument in Elonis v. United States, 13-983. Commenting on the argument, SCOTUSblog said: “At issue in the case is whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just ‘venting’ about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.” It also noted that it did not appear that either side had a clear path to “victory.” It pointed out that the federal government argued that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone. While Elonis argued that the test should be a subjective one: did he personally intend to threaten anyone?

According to SCOTUSblog, Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances “of how and what was said in words,” she asked, isn’t the jury really looking at what a reasonable person would think anyway. Highlighting that Justice Samuel A. Alito is no fan of extending First Amendment protection to offensive or unpopular speech, it said that nothing that occurred during Alito’s questioning of Elonis’ attorney suggested that Elonis’ chances of getting his vote were any better.

SCOTUSblog also believes that Alito may have an ally in Justice Antonin Scalia, who observed that, although the government’s proposed standard may be a fairly easy one for prosecutors to satisfy, that was not a problem because the statements at issue aren’t, as speech goes, very deserving of protection. It found that even Justice Ruth Bader Ginsburg seemed skeptical about how Elonis’ proposed standard would work as a practical matter. Although she asked only three questions during this oral argument, in two of those she pressed Elonis’ attorney to explain how the government “would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”

However, SCOTUSblog did observe that Chief Justice John Roberts proved to be Elonis’ staunchest ally on the bench. The Chief Justice asked the federal government’s attorney several times to clarify what exactly the government would mean by a “reasonable person”:  in the case of stupid teenagers making threats while playing video games online, for example, would a jury consider how a hypothetical “reasonable person” might perceive the threat, or would it consider instead what a “reasonable teenager” might think? When the attorney responded that it would depend on the audience to whom the teenagers were speaking, the Chief Justice expressed frustration with what he regarded as the potential for the statute to be applied inconsistently to the same speech:  “So if the teenager has a lot of friends on his Facebook page . . . then you are going to evaluate it by a different standard than if he only has a few friends that have access to his statements?”

The Chief Justice returned to this issue again later in the oral argument, asking the government’s attorney whether the government’s standard might result in prosecutions for violent rap lyrics, including lyrics by Eminem, that (in what was almost certainly a first at the Court) the Chief Justice quoted at some length.

Finally, SCOTUSblog wrote  that Justice Elena Kagan focused most of her energies at the oral argument on an effort to arrive at some sort of middle ground. She proposed what she described as a “recklessness” standard – someone like Elonis could be convicted as long as he knew that there was a substantial probability that his speech would place his ex-wife in fear, even if he didn’t actually intend to threaten her. Such a standard, she suggested, would create a kind of “buffer zone” that would provide more protection for speech than the government’s proposed rule, but at the same time would presumably avoid the kind of inquiry into the speaker’s subjective intent that Elonis would require.

On the question of the decision in Elonis’ effect on the issue of domestic violence, TechNewsWorld said, “If the Court upholds Elonis’ conviction, it will be an important victory in the effort to curb domestic violence.”

“The reasonable person standard is vital because very few abusers or stalkers admit their goal is to cause their victim fear,” said Cindy Southworth, vice president for development and innovation with the National Network to End Domestic Violence. “In this case, it didn’t matter where he posted his threats,” she told TechNewsWorld. “The goal was to threaten his victim, and he succeeded.”

If the court flips the lower court decision, it could be a serious setback, noted Southworth. “Most stalking statutes use the reasonable person standard, so if the decision is overturned, it could have a devastating impact on police and prosecutors’ willingness to take new cases involving the reasonable person standard.”

[Editor’s Note: In August 2011, Legal Clips summarized a decision by the U.S. Court of Appeals for the Eighth Circuit, in a three-judge panel in D.J.M. v. Hannibal Pub. Sch. Dist. holding that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats. The panel also concluded that the school district was justified in disciplining the student under the substantial disruption standard established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), based on Tinker’s language that school officials may discipline students for speech that occurs “in class or out of it,” which “might reasonably [lead]school authorities to forecast substantial disruption of or material interference with school activities.”]





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