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Parent mounts legal challenge to Vermont district’s no trespass order

Katie Sherman, the parent of student with multiple disabilities, has filed suit in federal court, says the Times Argus, against the Barre Supervisory Union and Barre Town School District, alleging she was improperly issued a no-trespass order from the Barre Town Middle and Elementary School grounds. Sherman’s suit states that after a dispute with school officials over her son’s individual education plan, she decided to home-school him.

The school district sent her a letter saying it understood her son would now be home-schooled. The letter also said her son could still participate in band, clubs and other extracurricular activities free of charge through eighth grade. Even though her son was now being home-schooled, Sherman said she actively pursued the due process complaint in an effort to get the school to comply with her son’s IEP so he could return to school. She contacted numerous organizations about the matter, including the Vermont Family Network (VFN).

While speaking with Martha Frank of VFN, Sherman said she made a comment out of frustration, suggesting she could understand why a man in Essex in 2006 “was pushed to the edge.” She was referring to Christopher Williams, who was convicted in 2008 of killing two teachers during a 2006 shooting spree in Essex that involved Essex Elementary School. According to her suit, Frank informed Barre Superintendent John Bacon about Sherman’s comment and Bacon contacted police. The suit states that shortly after a Barre Town officer arrived at Sherman’s home and told her to stay away from the school. Sherman said the officer told her he was acting on behalf of agents of the school.

Later that day, Sherman was issued a formal no-trespass order. Because of the order, Sherman claims, she wasn’t able to vote on Town Meeting Day or at the town’s municipal vote in May and is unable to attend school board meetings. Sherman also said the order required her to drop off or pick up her son on the roadway when he was at school.

Sherman insists she has never said anything threatening to police or anyone involved with the school, or otherwise indicate that she would be violent. She also claims the no-trespass order violates her First Amendment right to express herself and prevented her from being able to vote, arguing that violated her rights under the U.S. Constitution’s First and Fourteenth Amendments.

Sherman is seeking to have the no-trespass order lifted and damages  for violating her rights, as well as attorney fees.

Source: Times Argus, 7/16/15, By Eric Blaisdell

[Editor’s Note: In January 2015, Legal Clips summarized an article in Vermont Today reporting that Addison Rutland Supervisory Union (ARSU) has agreed to pay $147,500 in order to settle a suit brought by the American Civil Liberties Union of Vermont (ACLU-VT) on behalf of a parent that claimed that his First Amendment speech rights had been violated when he was banned from school district property and was, thus effectively, prevented from communicating with school board members at board meetings. In September of 2014, a federal district court ruled that ARSU violated Marcel Cyr’s right to free speech when officials barred him from attending board meetings or entering schools in the school district.] 

Georgia district settles suit brought by national advocacy group over coach and teacher led prayers at school activities

WSB-TV2 reports that Hall County School District (HCSD) has reached an out-of-court agreement with the American Humanist Association (AHA) to settle a suit brought by AHA challenging coach and teacher led prayer at HCSD’s high schools. “We are pleased that the district is taking productive steps forward to ensure compliance with the Constitution, and we expect that it will stop the student-staff prayer activities and other problematic conduct,” said David Niose, AHA’s legal director.

According to AHA’s website, HCSD Superintendent Will Schofield will issue a memorandum to his district’s principals that outlines “the standards for religious neutrality” required under the First Amendment. The school district will also hold a “training session” for administrators, “who will educate staff and coaches on their constitutional duties.” HCSD also issued a statement on dismissal of the suit in which it did not say specifically that it would ban staff-led prayer but said that “routine professional training for staff should include the legal rights and responsibilities of individuals regarding issues related to religion in the public school setting.”

The statement said that “While public school students are guaranteed wide-ranging religious freedoms, employees’ rights are more limited when in their work settings. The Hall County School District admits to no violations of state or federal laws. The district will continue to hold the expectation that individuals within our organization abide by the laws of our land.”

HCSD spokesman Gordon Higgins said that the district and the AHA had been “working back and forth” to reach an agreement since the suit was filed. He said the district’s main responsibility following the agreement will be to make sure staff members are “more cognizant of what the (First Amendment) guidelines say.” Those guidelines, released in 2003 by the George W. Bush administration and posted Monday on the school district’s website, say that “teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities.”

Source: WSB-TV2, 7/201/15, By Staff

[Editor’s Note: In August 2014, Legal Clips summarized an article in The Blaze reporting that AHA’s Appignani Humanist Legal Center, a secular legal firm, had sent a letter to HCSD officials warning that AHA would file a lawsuit if football coaches at Chestatee High School (CHS) did not end their practice of sharing prayer and Bible scriptures with players and placing those prayers and scriptures on official team stationary. AHA’s letter states:

We have been informed that the school’s football coaches have been using their position to promote Christianity on the football team by integrating Bible verses into functional team documents and team promotions in various ways. Meanwhile, they have been either leading the team in prayer or participating in team prayers on a regular basis.]

Alabama court dismisses state auditor’s suit against state attorney and local district officials over their use of public funds for political campaign

According to AL.com, Montgomery Circuit Judge Greg Griffin dismissed Alabama State Auditor Jim Zigler’s suit against Attorney General  (AG) Luther Strange and several Baldwin County school officials, alleging the spending public funds on the Build Baldwin Now campaign rallying for increased property taxes to fund school construction violated state law. Zigler’s suit contended that such political activity could not be fund with school board funds because of 2010 state legislative action.

AG Strange disagreed during the campaign, and issued an opinion that the use of public funds in such a way was legal, echoing a previous attorney general’s opinion in 2003. Griffin in essence agreed with Strange, and said that “if political activity included all issue advocacy” then public officials couldn’t push in favor of things such as crime bills, changes to state voting laws or tax increases or decreases.

The AG applauded the court ruling saying not only was the board’s action, and his opinion in support of it, in accordance with state law, but he wasn’t a “proper defendant in the case.” Zeigler, responding to the decision, said he would “study the ruling and decide next week whether to appeal to the Alabama Supreme Court.”

Baldwin County school board Shannon President Cauley said she was also “pleased” by the lawsuit’s outcome and, “Our one and only concern prior to the referendum and today is to provide the students of Baldwin County a safe, conducive place for learning.” “The only way to get the revenue is for the Board to inform the public that ‘we have a problem and we need your help to fix it,'” she said.

Source: AL.com, 7/17/15, By Michael Dumas

[Editor’s Note: In May 2015, Legal Clips summarized an article in AL.com reporting that Alabama State Auditor Jim Zeigler had filed suit in Montgomery County Circuit Court against Alabama Attorney General Luther Strange and Baldwin County school officials challenging the legality of local school boards using taxpayer funds to campaign for or against voter referendums. Zeigler made it clear that he is not pursuing the suit in his official capacity as state auditor, but instead as a private citizen who is receiving private funding for the suit.]

Advocacy group seeking to eliminate teacher tenure and other teacher protection laws has filed suit against 13 California school districts alleging they are violating state law requiring student scores on state standardized tests to be a component of a teacher’s evaluation

According to EdSource, Students Matter (SM), a nonprofit organization that is challenging teacher tenure and other teacher protection laws in California has filed suit against thirteen California school districts alleging that they are violating the state law, which requires student scores on state standardized tests be a component of a teacher’s evaluation. The suit, filed in Contra Costa County Superior Court, alleges that the school districts illegally agreed in contracts negotiated with teachers to exclude test scores. SM is seeking a court order requiring the districts to comply with the Stull Act.

SM’s attorney says, the suit captioned Doe v. Antioch is the logical next step after challenging California’s teacher tenure laws. “In Vergara v. California, we proved that teacher quality is the most important in-school factor affecting student success,” Theodore Boutrous said. “Meaningful and reliable teacher evaluations are crucial to determining whether students are being taught by effective teachers.”

SM argues that student progress on state tests is an important and reliable measure of effective teaching. The Legislature agreed, when, in 1999, it amended the Stull Act to include test scores on state tests among the multiple measures in evaluations. The suit contends that in violating the law, the school districts “intentionally disregard valuable student achievement data that are accessible to them, choosing instead to remain ignorant as to the quality of the teachers in their schools.”

The issue of test scores has been litigated already. In a 2012 ruling, Los Angeles County Superior Court Judge James Chalfant agreed with nonprofit EdVoice’s contention that the Stull Act requires the use of standardized test scores and ordered Los Angeles Unified to start using them. Chalfant left it to the district and United Teachers Los Angeles (UTLA) to agree on how and to what extent test scores should factor in an evaluation. With the departure of Superintendent John Deasy last year, the district and UTLA restarted discussions and have yet to reach a deal. Chalfant’s ruling applied only to L.A. Unified and, since it was not appealed, it gained little traction.

In reaction to the Vergara ruling, legislators in both parties introduced several bills this year to rewrite the Stull Act. All would clarify the standards for evaluating teachers, better designate who needs improvement and increase the frequency of evaluations. Two similarly worded bills authored by the chairs of the Assembly and Senate Education Committees – Assemblyman Patrick O’Donnell and Sen. Carol Liu have stalled amid opposition from education management and civil rights groups.

One of the contentious unresolved issues involves how much test scores would count – and who would decide. The Stull Act leaves it up to districts to determine whether scores should count a lot or a little. The latest versions of Liu’s and O’Donnell’s bills, AB 575 and SB 499, would, like the Stull Act, require student achievement as one factor of an evaluation, and it would require test scores on state tests to be one factor of measuring achievement. Both bills, however, would require districts to negotiate all of the details with teachers. Groups like the Association of California School Administrators and the California School Boards Association strenuously oppose this change.

Source: EdSource, 7/16/15, By John Fensterwald

[Editor’s Note: The EdSource article incorrectly states that Vergara v. California is a federal court case. However, Vergara was filed in and decided by the Superior Court of Los Angeles County. In June 2014, Legal Clips summarized the court’s decision holding that five state statutes that provide for teacher tenure and other job protections violate the California Constitution’s guarantee of equal protection. It found, based on state legal precedent and the evidence presented,  that the challenged statutes “impose a real and appreciable impact on students’ fundamental right to equality of education and that they imposed a disproportionate burden on poor and minority students.” Subjecting each of the statutes to strict scrutiny, the superior court concluded the state had failed to meet its burden of showing the laws had a compelling interest justifying each law, and “the distinctions drawn by the laws are necessary to further the laws’ purpose.” However, the court stayed enforcement of its decision pending an appeal.

A SM press release applauds the fact that AB 575 and SB 499 have been stalled in the state legislature. SM’s Policy Director Ben Austin said:

In order to guarantee that every California student has access to an effective teacher and a quality education — as the Vergara ruling mandates — pupil progress must drive our teacher evaluation system. We applaud the Democratic leadership in the Assembly and Senate for recognizing that these bills would weaken existing accountability measures, and would ultimately harm California’s children.]

Eleventh Circuit rules that Florida’s teacher evaluation law and policies implementing it do not violate teachers’ substantive due process or equal protection rights

Cook v. Bennett, No. 14-12506 (11th Cir. Jul. 7, 2015)

Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel has ruled Florida’s Student Success Act (SSA), which creates a teacher evaluation system, and the defendants’ implementation of the SSA does not violate the Fourteenth Amendment Due Process or Equal Protection Clauses. The panel rejected the plaintiffs’ substantive due process claim, finding that the plaintiffs had failed to refute the defendants’ argument that the policies implementing the SSA are rationally related to the purpose behind the SSA, which is to “increas[e] student academic performance by improving the quality of instructional, administrative, and supervisory services in the public schools of the state.” It came to the same conclusion regarding the equal protection claim, saying, “Rational basis review in the context of equal protection is essentially equivalent to rational basis review in the context of due process.”

Facts/Issues: In 2011, the Florida legislature enacted the SSA, establishing new requirements for public school teachers’ performance evaluations. The SSA provided that “[a]t least 50 percent of a performance evaluation must be based upon data and indicators of student learning growth assessed annually by statewide assessments.” It tasked the Florida Commissioner of Education with approving “a formula to measure individual student learning growth on the Florida Comprehensive Assessment Test (FCAT).”

Plaintiffs, seven Florida public school teachers and three local associations that represent teachers, brought this lawsuit in federal district court against the school districts of Alachua, Escambia, and Hernando Counties, as well as the Florida Commissioner of Education and other officials from the Florida State Board of Education. The lawsuit challenged, under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, the constitutionality of the SSA and the defendants’ implementation of the SSA.

The Defendant’s filed a motion to dismiss the Plaintiffs’ claims. Responding to the defendants’ motion to dismiss the suit, the district court determined that the plaintiffs had standing because they had alleged a concrete risk that they would “make[] less money in the future than they would have absent the irrational evaluation system authorized by the Act.” However, it granted that part of the motion seeking to dismiss the plaintiffs’ facial challenge to the SAA on the ground that the Florida legislature had a rational basis for enacting the evaluation scheme.

Although the district court allowed the plaintiffs’ as-applied claims to proceed, it subsequently granted the defendants summary judgment on those claims, holding that the evaluation policies implemented under the SSA (approved by the state defendants and implemented by the district defendants) similarly were justified by a rational basis. Because the defendants did not raise standing at summary judgment, the district court did not rule on it further. Plaintiffs timely appealed the district court’s decision.

Ruling/Rationale: The Eleventh Circuit panel affirmed the decision on all issues raised on appeal. Disposing of the standing and mootness issues, the panel focused in analysis on the Fourteenth Amendment claims. Addressing the substantive due process claim first, it applied the rational basis standard because the law challenged allegedly infringed on a non-fundamental right. In order to pass constitutional muster under that test, the panel stated that “the school district’s evaluation policies must be rationally related to a legitimate governmental purpose.”

The panel rejected the plaintiffs’ argument that “the evaluation policies fail rational basis review because the policies arbitrarily and illogically evaluate teachers based on test scores either of students or in subjects they did not teach.” It pointed out that the defendants’ justification for the policies was that they are rationally related to the purpose behind the SSA, which is to “increas[e] student academic performance by improving the quality of instructional, administrative, and supervisory services in the public schools of the state.” It, therefore, concluded the plaintiffs had failed to carry their burden of refuting the defendants’ assertion that the policies implementing the SSA are rationally related to the purpose behind the SSA.

The panel also agreed that it is “reasonable to think that tying teacher evaluation scores and teacher compensation to FCAT VAM scores can incentivize teachers to pursue more school-wide improvements, which would in turn improve student academic performance.” As a result, it affirmed the district court’s holding that the policies pass rational basis review.

The panel, likewise, concluded that the policies passed constitutional muster under the Equal Protection Clause. It said, “Rational basis review in the context of equal protection is essentially equivalent to rational basis review in the context of due process.” It found that the plaintiffs’ reliance on two Fifth Circuit decisions, Debra P. v. Turlington, 644 F.2d 397 (5th Cir. May 1981), and Armstead v. Starkville Mun. Separate Sch. Dist., 461 F.2d 276 (5th Cir. 1972), was misplaced.

The panel pointed out that Armstead and Turlington were distinguishable from the present case because those “cases involved tests that could not further a legitimate state objective.” It emphasized that  the plaintiffs “conceded that the FCAT VAM is—or at least a rational policymaker could believe it is—capable of measuring some marginal impact that teachers can have on their own students or on the overall school environment.” The panel, therefore concluded: “[T]he FCAT VAM is not analogous to the tests at issue in Armstead and Turlington, and it was not irrational for the districts to use the model for teacher evaluations.”

Cook v. Bennett, No. 14-12506 (11th Cir. Jul. 7, 2015)

[Editor’s Note: In May 2014, Legal Clips summarized an Associated Press article in  in the Bradenton Herald reporting that  a federal district court has ruled that while Florida’s teacher evaluation law that ties teacher merit pay increases to student performance on standardized tests may be unfair, it is not unconstitutional.  The suit, which was brought by a number of teachers, the Florida Education Association (FEA), and the National Education Association (NEA), contended that linking teacher evaluations to standardized testing is unconstitutional.]

Advocacy group’s suit accuses New York state district’s board of pro-Jewish religious bias

The Rockland County Times reports that a suit filed by Advocates for Justice (AJ), a public-interest law firm, in 2012 in federal district court on behalf of parents, students, and taxpayers against East Ramapo Central School District (ERCSD) is still pending. The suit, captioned Montesa v. Schwartz, Docket No. 12-cv-06057, accuses ERCSD’s board of selling school property below market prices for private school use, problems with special education funding and buying religious textbooks, all of which AJ contends demonstrate a religious bias by the board’s majority Hasidic and Orthodox Jewish members.

The lawsuit seeks at least $10 million jointly and individually from all defendants. If the case goes before a jury, and the defendants are found liable, they may be required to reimburse the district.”This is a First Amendment lawsuit; it alleges violations of First Amendment establishment clause; it is not a class action lawsuit,” Laura Barbieri, counsel for the plaintiffs, explained. “It alleges the school board violated the constitutional rights of students in the district in favor of the religious interests of the Hassidic and Orthodox community and is depriving public school children of a sound-basis education and an opportunity for achievement and a quality education.”

“There are people who have timed out by graduating, moved out or left the district schools and those who are tuckered out,” Barbieri said. “They’re understandably unhappy about how long it’s taking and how nothing they can point to is being achieved for the kids still there.” State-appointed fiscal monitor Hank Greenberg reported last November (2014) that “aspects of the district’s special education program are noncompliant with state and federal law” and concluded special education costs “consume an enormous portion of the district’s budget” calling the district’s special education program a “source of controversy, litigation and misunderstanding.”

Barbieri said the plaintiffs are pushing for forward motion in the case. “We have to get in front of a jury.” Two appeals in the Second Circuit must be decided before the federal lawsuit can be concluded. Barbieri said the defendants are costing the taxpayers additional money by appealing. “There’s also a serious issue that funding the defense [with taxpayer monies] has been a breach of fiduciary duty to protect the funding for the district’s public school kids,” Barbieri said.

According to a Second Circuit Court of Appeals ruling last March (2014), the requirement for children to mainstream into the least restrictive environment was intended to prevent schools from segregating disabled students from other students and not to restrict parents’ options when the schools did not comply with Individuals with Disabilities Education Act (IDEA) requirements.

Source: Rockland County Times, 7/16/15, By Janie Rosman

[Editor’s Note: AJ issued a “Major Case Alert” saying:

Advocates for Justice is helping parents, students and community members to immediately and significantly improve the quality of public education offered in the East Ramapo Central School District. Unfortunately, the schools have been in decline; they are not serving children well and they are underperforming public schools in surrounding districts and in the rest of New York State.

The East Ramapo students have lost numerous teachers, valuable programs, and other important resources that make good education possible. In addition, there has been a clear pattern of increased segregation of students by race and religion, with children of color disproportionately represented in public schools and white orthodox and Hasidic children being placed in private religious schools, known as yeshivas.

In July 2013, Legal Clips summarized an article in The Jewish Week reporting that a ruling by New York State Education Commissioner John King means that Yeshivat Avir Yakov, a chasidic school, will no longer be permitted to lease the former Hillcrest Elementary School building from the East Ramapo Central School District at below-market prices. In upholding a petition filed against the school district and annulling the lease, King said, “I cannot find, on this record, that the [School] Board took reasonable steps to ensure that it was getting the best deal possible.”]


Parents of three softball players file Title IX suit alleging boys sports programs receive more favorable treatment

Arkansas Online reports that the parents of three players on the Fayetteville High School softball team have filed suit in federal court against Fayetteville Public Schools (FPS) alleging that boys athletic teams receive better funding, equipment, scheduling, locker rooms, training facilities, publicity and more experienced and higher paid coaches in violation of Title IX. According to the suit, “The imbalance in the treatment of female and male athletes at Fayetteville Public Schools as detailed above, demonstrates Fayetteville Public Schools’ intentional and conscious failure to comply with Title IX.”

The parents’ suit demands that FPS provide equal opportunities and facilities to all athletes. It also seeks compensation for money the parents spent on sports equipment and supplies they were required to buy. They claim the district is hurting their daughters’ chances to obtain college athletic scholarships. The parents’ attorney Sam Schiller said, “It’s about fundamental fairness.” He added, “They talked with the School District and got to the point where they were frustrated and felt out of choices.”

The lawsuit outlines eight main complaints, including access to locker rooms, practice and competition facilities. The lawsuit compares the baseball and softball facilities on everything from dugout size to weight rooms.

FPS Superintendent Paul Hewitt insists the school district has one of the finest high school softball facilities in the United States. “Our facilities for both boys and girls are outstanding and reflect our district’s commitment to equity,” he said. “We believe the quality of our athletic programs for both male and female athletes will be fully demonstrated in the pending court action.”

The suit claims male athletes were able to attend a “5th period” athletic hour that gave the baseball coach two athletic periods during the school day to work with players while the softball coach only had one period. David Young, assistant principal for the fine arts and creative expression program, said fourth and fifth periods served as a “sophomore period” for athletics in recent years. The sophomore period is available to any sport if numbers dictate a need and if the coaches in their respective sports were available.

The football, baseball, volleyball and girls and boys basketball teams used the sophomore period last year. Athletes participating in the sophomore period couldn’t sign up for the varsity period as well, meaning athletes could only take one athletic period. The suit points out that the softball team has one paid coach, while the baseball team has three paid coaches and the football program has more than a dozen paid coaches, and the district sets higher standards for coaches on the boys’ teams.

Source: Arkansas Online, 7/16/15, By Christie Swanson

[Editor’s Note: The parents’ legal complaint lays out eight areas where girls sports are allegedly being treated unfairly based on gender: (1) Funding of athletics; (2) Provision of equipment and supplies; (3) Scheduling of games and practice times; (4) Assignment and compensation of coaches; (5) Opportunities to receive coaching; (6) Provision of locker rooms and facilities; (7) Provision of training facilities; and (8) Publicity. In addition to the Title IX claim, the legal complaint also raises an equal protection claim.

In June 2014, Legal Clips summarized an article in The Daily News reporting that Batavia City School District (BCSD) in New York state had settled a Title IX suit brought by the Empire Justice Center (EJC) in April 2013 on behalf of three softball players and their parents. The suit alleged that BCSD’s policy of renting Dwyer Stadium for all boys’ varsity baseball home games, while providing the girls with substandard playing fields at the school, violated Title IX of the Educational Amendments of 1972.]

DOL issues “Administrator’s Interpretation” on the classification of workers as independent contractors versus employees

The National Law Review reports that the U.S. Department of Labor (DOL) has issued a new “Administrator’s Interpretation” on the status of workers as independent contractors versus employees. In the interpretation, DOL Wage and Hour Division Administrator David Weil stresses that most workers are employees under the Fair Labor Standards Act (FLSA), not independent contractors. Multiple factors still come into play when determining independent contractor status but the DOL ultimately will look to whether the worker runs his or her own independent business or instead, is economically dependent on the employer.

The FLSA defines “employ” as “to suffer or permit to work.” According to Administrator Weil, this broad definition will encompass most workers. He notes that the definition has roots in state child labor laws which sought to ferret out employers who used children as laborers illegally. He also cites Supreme Court and federal court cases that state that the “suffer or permit to work” standard has broad applicability and extends to the farthest reaches in order to achieve the goals of protecting workers under the FLSA.

Noting that courts have developed a multi-factor “economic realities” test to determine whether a worker is an employee or an independent contractor, the Administrator’s Interpretation goes through each factor, providing examples and cases that help in the analysis. While the factors haven’t really changed, here are some important distinctions made in this Interpretation:

  • A contract setting forth an independent contractor relationship “is not relevant” in determining whether the worker is properly classified as an independent contractor; the actual working relationship is what matters, not the label given to it by the parties.
  • The individual’s opportunity to make a profit or realize a loss on the job must include whether the individual’s managerial skills result in that profit or loss; in other words, a worker’s willingness or ability to work more hours or work more efficiently is not enough to suggest independent contractor status, instead the individual must be making managerial decisions about hiring assistants, purchasing materials, advertising, etc., in order to support independent contractor status.
  • The worker’s investment in tools, equipment and doing the job must be compared to the employer’s investment; a worker who provides a few essential tools to do the job may not be enough to contribute toward independent contractor status; instead, the worker’s investment must be significant, particularly when compared to the entity’s investment in the job.
  • Being highly skilled in a particular type of work is not sufficient in suggesting independent contractor status as many employees are highly skilled in the services they provide to their employer; instead, an independent contractor must include “business-like initiative.”
  • The degree to which the entity controls the work of the individual should not play an oversized role in the analysis; many workers today are not under constant supervision of their employers but that lower degree of monitoring and control does not make them independent contractors.

The Administrator’s Interpretation establishes that no single factor in the economic realities test is determinative and each factor should be analyzed in terms of whether the worker is economically dependent on the employing entity or is truly in business for him- or herself. The DOL has made misclassification of employees a high priority for the past few years and with this Administrator’s Interpretation, it is signaling its intent to crack down even further on businesses who classify workers as independent contractors.

Source: The National Law Review, 7/15/14, By Brad Cave

[Editor’s Note: DOL Administrator’s Interpretation No. 2015-1 states:

Misclassification of employees as independent contractors is found in an increasing number of workplaces in the United States, which in part reflect larger restructuring of business organizations. When employers improperly classify employees as independent contractors, the employees may not receive important workplace protections such as minimum wage, overtime compensation, unemployment insurance, and workers’ compensation. Misclassification also results in lower tax revenues for government and an uneven playing field for employers who properly classify their workers. Although independent contracting relationships can be advantageous for workers and businesses, some employees may be intentionally misclassified as a means to cut costs and avoid compliance with labor laws.

Many school districts hire independent contractors to do routine work for them. Given this new Administrator’s interpretation, it might be wise for those school districts to confer with their COSA attorneys to make sure that these relationships meet the requirements for independent contractor status.]

Parent files suit against Pennsylvania district over his daughter receiving a zero after missing biology test because she was working on school fundraiser

According to The York Daily Record, Kevin Downs, the father of Madison Downs, a student at Red Lion Area High School, has filed suit against Red Lion Area School District (RLASD) alleging his daughter received a zero for missing a test in biology class even though another teacher gave her permission to miss the class in order to help that teacher with a fundraiser. Downs is seeking to have the zero removed from his daughter’s grades. The suit claims Madison Downs was classified as cutting class and not allowed to make up the work. It argues that she was told by another teacher she wouldn’t be penalized and that she could not be academically punished for that sort of misconduct anyway.

The suit states Downs received a pass to miss her sixth period class on May 4th to help the school executive council, of which she is a member, assemble submarine sandwiches for a fundraiser. Teacher Keith Blackwell, the advisor, asked students to stay for seventh period, anticipating that a fire drill would slow down the process. She did not have a pass for seventh period, honors biology, and told Blackwell she had a test, according to the suit. Blackwell, the lawsuit says, told her and another student that their teacher, J.D. Granger, was his “homey” and he would make sure they were not penalized for missing the test. He told students he’d email their seventh-period teachers.

But when Madison’s absence, along with another student’s, was noted, Granger announced they’d be getting zeros, the lawsuit says. Another student told Granger where Madison and the other student were, the complaint says, but Granger did not try to reach them. Despite the extra credit work she was offered, the zero affected her final grade and caused her class rank to fall from first to sixth.

The lawsuit, which doesn’t seek any financial damages, asks to have the zero removed and her GPA and rank recalculated. It also asks the court to declare unlawful the district’s policy of not allowing students to make up work if they intentionally miss or cut class. RLASD’s attorney Ben Pratt declined to comment on the suit.

RLASD’s 2014-15 student handbook, available online, says any student who intentionally misses or cuts class will be counted as unexcused and not allowed to make up missed work for full credit. A student also earns a Saturday detention for the first offense, it says. Kevin Downs says it’s not skipping class when his daughter was with another teacher at his request. Still, he would have preferred she be given detention, but allowed to make up the exam. His attorney, Dan Fennick, says there is legal precedent to overturn a policy that would punish a student academically for misconduct.

Source: The York Daily Record, 7/10/15, By Angie Mason

[Editor’s Note: In May 2007, Legal Clips summarized an article in the Charleston Daily mail reporting that a West Virginia state court had dismissed a lawsuit filed against a high school teacher and the Kanahwa County school board by parents of a high school sophomore who was given a failing grade on a leaf project. According to the lawsuit, Lindsay Hay did not turn in the project in Jane Schultz’s advanced biology class on the date it was due because she was out of school on an approved student council trip.] 

Tennessee district’s board agrees to settle teacher’s suit claiming he was underpaid based on state mandated pay minimums

The Johnson City Press reports that the Washington County Schools Board of Education (WCSBOE) unanimously voted to approve a  payment to David Crockett High School government and economics teacher Jamie Freeman, in the amount of $22,655, plus 5% interest, in exchange for Freeman’s dismissal of a lawsuit filed against the school board in Washington County Chancery Court. The vote came after board members held a closed door meeting with their attorneys.

Freeman’s suit  claimed the district made several errors in paying him in accordance with the district’s approved step raise schedule, which increases pay above a base salary based on years of experience and level of academic degree held. As a result of the settlement, the school district is vulnerable  to more litigation after administrators realized the approved pay scale did not meet some of the state’s mandated pay minimums.

Under the district’s schedule, teachers with advanced degrees enter two tracks. The lower track, Plan A, is paid to teachers who have advanced degrees,but aren’t in positions related to their degrees. The higher track, Plan B, is paid to teachers who have advanced degrees and are in positions related to their degrees. According to the previous collective bargaining agreement forged between the district and the local teachers’ union, once a teacher is assigned to Plan B, he or she cannot be downgraded to Plan A unless he or she requests a transfer or receives documentation of unsatisfactory job performance.

Freeman, who received his education specialist degree in 2007, said he entered the Plan B track that year under then-Director of Secondary Education Roy Gillis, and remained on the track through the 2009-10 school year. In the 2010-11 school year, however, Freeman said he was paid a base salary of $46,238, the rate assigned to Plan A, rather than the $46,916 he was entitled to under Plan B. The educator did not realize the discrepancy until the summer of 2011.

The following year, Freeman said he was listed by the district as having a master’s degree plus 30 semester hours, a downgrade from the education specialist degree he previously held and from the doctorate he attained in 2011. In 2012-13, he was finally listed by the district with the correct degree and years of experience and was paid according to the district’s salary schedule — the only problem was that the $50,156 base pay listed on the district’s salary schedule was lower than the state-mandated minimum salary for a teacher with his degree and experience, which was $51,090.

The combination of the incorrect track, the mislisted degree and the salary below the state-mandated minimum led to his being underpaid thousands of dollars, Freeman said in his suit, with which the school board ultimately agreed. “Basically, he’s due the money,” the board’s attorney, Earl Booze said.

After Finance Director Beverly Thomas analyzed years of salary records and state-set pay scales, the attorney said he couldn’t deny that conclusion, and he convinced the board likewise. “If we owe money, we pay it,” school board member Clarence Mabe said last week after the vote to approve the settlement was tallied.

Booze said other teachers might have also been paid lower than state minimums when the district’s pay scale did not match up.

Source: Johnson City Press, 7/9/14, By Nathan Baker

[Editor’s Note: In January 2012, Legal Clips summarized an article in the Tennessean reporting that Gov. Bill Haslam had proposed that Tennessee scrap its current state-mandated teacher salary scale, based on seniority and training. He recommended replacing the scale with a system that would reward teachers based on student performance, degree of difficulty in filling the teaching position, and other factors. According to Haslam, his plan would allow school districts to create their own pay plans that address their own needs, plus reward high performers.] 

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