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Parent of student files suit against Michigan district alleging school officials failed to take steps to stop bullying/harassment by classmate

The mother of an eighth grade student has filed suit against Hartford Public Schools (HPS) and a number of school officials, reports WOOD TV 8, alleging that the school district and some staff knew the student was being bullied but didn’t take the proper steps to stop the bullying. In addition to HPS, Hartford Middle School Principal Joel Passenger, Hartford High School Principal David Janicki and Superintendent Andrew Hubbard were named as defendants in the suit.

The suit details a number of instances where the alleged bully threatened the student with physical violence and death. It claims the alleged bully has a history of “targeting female students and staff at school for intimidation, threats and assaultive behavior.” According to the suit, when the girl’s parent spoke to the middle school principal, he said that “it was nothing to worry about” and was “very vague.”

The suit also contends that when police tried to investigate the threats, officers were told that the school officials and teachers wouldn’t talk to them about the threats, citing privacy concerns. The Hartford police officer, who investigated the case, said HPS had always cooperated with police investigations in the past and had never cited privacy concerns before this incident. Staff eventually provided some information to police about the alleged threats. There is an open criminal investigation.

Superintendent Hubbard said he was not aware of the suit, adding, “We have policies and regulations in place that meet the state code and we follow those policies as directed by the board of education.”

The suit alleges that HPS violated Title IX and the student’s 14th Amendment rights. The district allegedly violated Title IX by not requiring “appropriate investigations of complaints or identifying the person to whom complaints should be directed.” It also alleges that the threats “constitute severe, pervasive and objectively offensive sex-based harassment that has deprived [the alleged victim] of access to educational opportunities and benefits provided by the middle school.” The 14th Amendment violation is allegedly because the threats meant that the girl did not get equal protection under the law and her rights to personal safety and security were violated.

Source: WOOD TV 8, 5/27/15, By Staff

[Editor’s Note: In April 2015, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) had issued a press release in response to a U.S. Court of Appeals for the Fourth Circuit three-judge panel’s decision in Does v. Board of Education of Prince George’s County, ruling that courts are required to apply the deliberate indifference standard, to determine liability under Title IX, rather than the negligence standard that the plaintiffs sought. The panel’s decision is in alignment with the U.S. Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education, which held that school districts may only be held liable under Title IX for peer-on-peer sexual harassment if school officials are actually aware of and act deliberately indifferent to severe, pervasive, and objectively offensive harassment.]

 

 

 

Louisiana district enters into consent order with DOJ that provides a three-year desegregation plan leading to the district achieving unitary status

Courthouse News Service reports that the Avoyelles Parish School Board (APSB) has agreed to a three-year plan with the U.S. Department of Justice (DOJ)  to complete its 1967 goal of desegregation. APSB has been under a federal desegregation order since 1967. The case is one of several remaining in which desegregated – or unitary – status has never been reached, despite the fact that it has technically been in litigation for over 50 years, according to court documents.

If APSB complies with federal regulations for the next three years and implements a series of federal directives, including adoption of a uniform admissions process and ensuring that classes within schools are desegregated, it will be considered unitary. In addition to those directives, the school board must also determine whether a magnet program can be established at a “racially identifiable African American elementary school,” and take steps to encourage white students to transfer to that school.

Additionally, APSB must revise discipline policies in schools to reduce racial disparities in the use of exclusionary discipline, such as suspensions and expulsions, among other directives. Commenting on the agreement, Chief Judge Dee Drell of the Alexandria, Louisiana Federal Court said, “What this Court has seen along the way is a hopeful transformation of a school board which was initially tentative, recalcitrant, and partially uninformed regarding the depth of its responsibilities in the desegregation area.” He continued, “That board has now matured and we have seen a remarkable effort within the board to get on with the work of providing the best for the children of Avoyelles Parish.”

Principal U.S. Deputy Assistant Attorney General Vanita Gupta of the federal Civil Rights Division praised the group effort involved in completing desegregation of schools in Avoyelles Parish.  “The Avoyelles Parish School Board’s unanimous vote to approve the consent order reflects our shared goal of securing equal educational opportunities for all students,” Gupta said. “We are confident that this agreement will bring meaningful progress, and we look forward to working closely with the School Board over the next three years to bring this case to a successful close.”

Source: Courthouse News Service, 5/27/15, By Sabrina Canfield

[Editor’s Note: In February 2015, Legal Clips summarized an article in Education News, culled from a number of news sources, reporting that the DOJ had reached a tentative agreement with Huntsville City Schools (HCS) in a lengthy legal dispute over the desegregation of the city’s schools. The agreement represents the successful conclusion of mediation between the parties, which was ordered by federal court Judge Madeline Haikala in the summer 2014. The mediation focused on reaching a proper agreement in rezoning the school zone boundary lines.]

U.S. Supreme Court rules mental state required for guilt under federal true threat statute requires more than a negligence standard

Elonis v. United States, No. 13-983 (U.S. Jun. 1, 2013)

Abstract: The U.S. Supreme Court, in a 7-2 split, held the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, was not sufficient to support a conviction under Section 875(c). Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing.” Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.

Chief Justice Roberts, joined by Justices Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, issued the Court’s opinion. Justice Alito filed an opinion concurring in part and dissenting in part. Justice Thomas filed a dissenting opinion.

The Roberts led majority pointed out that the generally “a guilty mind is a necessary element in the indictment and proof of every crime.”  As a result, it found “criminal statutes are generally interpreted to include broadly applicable scienter requirements, even where the statute . . . does not contain them.”

The majority concluded: “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of ‘awareness of some wrongdoing,’”

Facts/Issues: The issue in this case involves what standard to apply to determine whether an individual’s online postings constitute a “true threat” exception to the First Amendment’s free speech protection. The petitioner, Anthony Elonis, was charged under federal law with transmitting in interstate commerce communications containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c).

The grand jury subsequently indicted him on five counts of making threatening communications. Elonis filed a motion to dismiss the indictment against him, contending that, in Virginia v. Black, 538 U.S. 342 (2003), the Supreme Court held “that a subjective intent to threaten was required under the true threat exception to the First Amendment and that his statements were not threats but were protected speech.”

The federal district court denied his motion on the ground that even if the subjective intent standard applied, Elonis’ intent and the circumstances showing whether or not the statements were “true threats” was a question of fact for a jury. After trial, a jury convicted Elonis on four of the five counts. He filed several post-trial motions, which the court denied.

In denying his motions, the court stated that the objective intent standard conformed with precedent of the U.S. Court of Appeals for the Third Circuit. The district court also concluded that the evidence presented at trial supported the jury’s finding that the statements in three of the counts were true threats. Elonis appealed his conviction to the Third Circuit.

A three-judge Third Circuit panel upheld Elonis’ conviction. It rejected his contention that because the Supreme Court held that Virginia’s prima facie evidence provision in its cross-burning statute violated due process, the Court had established a subjective intent standard as it relates to the true threat exception to free speech protection. It stated that the U.S. Supreme Court’s reasoning in Black, as related to the prima facie provision, addressed the constitutionality of that provision in regard to the defendant’s due process rights to not put on a defense, rather than the issue in the present case which involved whether a reasonable person would foresee Elonis’ statements as conveying threats.

The panel also noted that the majority of federal circuits that have addressed the issue have determined that Black does not require a subjective intent to threaten. The court said “We agree with the Fourth Circuit that Black does not clearly overturn the objective test the majority of circuits applied to § 875(c). Black does not say that the true threat exception requires a subjective intent to threaten. Furthermore, our standard does require a finding of intent to communicate.”

Ruling/Rationale: The U.S. Supreme Court, 7-2, reversed and remanded the Third Circuit panel’s decision upholding Elonis’ conviction under § 875(c). The majority began its analysis by pointing out that “neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).” It emphasized that the absence in a statute of a required mental state does not mean it does not exist.

The majority pointed to the “general rule” that a guilty mind is “a necessary element in the indictment and proof of every crime.” As a result, it found courts “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” According to the majority, “When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.”

The majority’s reading of § 875(c) revealed that “the mental state requirement must … apply to the fact that the communication contains a threat.” However, it found that Elonis’s conviction “was premised solely on how his posts would be understood by a reasonable person.” This led the majority to concluded:  “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.”

The majority rejected the government’s argument that it was not suggesting a negligence standard. The majority stated:

Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.

It rejected the reasonable person standard as a basis for criminal guilt under § 875(c) on the ground that “[f]ederal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

While acknowledging the question of whether a finding of recklessness would be sufficient for guilt, the majority declined to address the question because “[n]either Elonis nor the Government has briefed or argued that point.”

Justice Alito, concurring in part and dissenting in part in the opinion, took issue with majority’s failure to determine the type of intent required to satisfy § 875(c), other than to rule out negligence as an acceptable standard. He stated, “There is no justification for the Court’s refusal to provide an answer,” adding,”[i]f the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument.”

While agreeing “that an offense like that created by §875(c) requires more than negligence with respect to a critical element like the one at issue here,” Alito contended, “[W]hen Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed.” He, therefore, concluded: “I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat.”

Justice Thomas’ dissent expressed dissatisfaction with the majority’ failure to resolve the conflict between Elonis argument that § 875(c) and the First Amendment require proof of an intent to threaten and the federal government’s advocacy of a general-intent approach. He concluded: “Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment below.”

According to Thomas, “Our default rule in favor of general intent applies with full force to criminal statutes addressing speech.” He also said, “At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.”

Thomas also argued that “[d]emanding evidence only of general intent also corresponds to §875(c)’s statutory backdrop.” Faulting the majority for rejecting these “ordinary backdrop principles, he insisted the majority “casts my application of general intent as a negligence standard disfavored in the criminal law.”

Justice Thomas found the majority’s reasoning flawed, stating:

Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under §875(c) prevents a defendant from being convicted on the basis of any fact beyond his awareness.

However, Thomas found a ray of legal sunshine in the fact that the majority had at least refrained “from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do.” He then addressed whether Elonis’ posts were entitled to First Amendment protection.

Specifically, Justice Thomas explored whether Elonis’ posts fell within the true threat exception to the First Amendment. According to Thomas, “Elonis claims that only intentional threats fall within this particular historical exception.”

After reviewing the history of true threat jurisprudence, Justice Thomas found “there is good reason to believe that States bound by their own Constitutions to protect freedom of speech long ago enacted general-intent threat statutes.”  He found Elonis’ counter historical analysis unpersuasive. Thomas added, “The Court’s fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here.”

Thomas also rejected  Elonis’ view because: “In addition to requiring a departure from our precedents, adopting Elonis’ view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine.”

Elonis v. United States, No. 13-983 (U.S. Jun. 1, 2013)

[Editor’s Note: In December 2014, Legal Clips summarized ScotusBlog’s commentary on U.S. Supreme Court’s oral argument in Elonis v. United States. 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? ]

COSA Webinar: June 10, 2015 – Building, Maintaining and Growing a School Law Practice

Gregory J. Guercio, COSA’s Immediate Past Chair, has been a practicing school attorney for over 40 years. Starting as a sole practitioner with one school district client, he has overseen the growth of his firm to a team of 25 attorneys concentrating in the representation of school districts located in the NYC suburbs and the State Capital region. Greg will share his experiences in building, maintaining, and growing a school law practice, and strategies for competing in today’s challenging environment, and that of the future. Register now for this webinar.

  • Time:1:00 p.m. – 2:15 p.m. (EDT)
  • Host:Sonja Trainor, Director, NSBA Council of School Attorneys
  • Presenter:Greg Guercio, Immediate Past Chair, NSBA Council of School Attorneys, Law Offices of Guercio & Guercio, LLP, Farmingdale and Latham, NY

 

Updated Summary: U.S. Supreme Court rules that employer can be liable under Title VII based on the theory of disparate treatment, even in the absence of the employer’s knowledge that an applicant needs a religious accommodation, if the need for such accommodation is the employer’s motivating factor for not hiring the applicant

EEOC v. Abercrombie & Fitch Stores, 14-86 (U.S. Jun. 1, 2015)

Abstract: The U.S. Supreme Court, in a 8-1 split, reversed the U.S. Court of Appeals for the Tenth Circuit’s decision holding that under Title VII an employer is only required to provide an employee or prospective employee with a religious accommodation when the employer has actual knowledge of the need for accommodation. The eight justice majority held: “To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.” Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Justice Alito filed an opinion concurring in judgment. Justice Thomas filed an opinion concurring in part and dissenting in part.

Justice Scalia’s majority opinion pointed out that Title VII “does not impose a knowledge requirement.” It found that instead, “the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.” The majority stressed that “motive and knowledge are separate concepts.” Scalia noted: “An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”

The majority concluded:  “[T]he rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” It rejected Abercrombie’s suggestion that the Court adopt a rule requiring the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. It found that such a rule would add a knowledge requirement to Title VII that does not presently exist in the law and can only be added by Congress, in its legislative capacity.

Facts/Issues: Abercrombie & Fitch’s  employee dress policy, known as the Look Policy , prohibits  the wearing of“caps.” The policy does not define the term, but imposes the prohibition on the basis that “caps” are too informal for Abercrombie’s desired image. Samantha Elauf pursuant to her Muslim religious beliefs wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager.

Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy. Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The EEOC sued Abercrombie on Elauf ’s behalf, claiming that its refusal to hire Elauf violated Title VII. The federal district court granted the EEOC summary judgment on the issue of liability, held a trial on damages, and awarded $20,000. The U.S. Court of Appeals for the Tenth Circuit reversed and awarded Abercrombie summary judgment. It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation.

Ruling/Rationale: The U.S. Supreme Court, in a 8-1 split, reversed the Tenth Circuit’s decision holding that under Title VII an employer is only required to provide an employee or prospective employee with a religious accommodation when the employer has actual knowledge of the need for accommodation. The eight justice majority held: “To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.” Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed an opinion concurring in part and dissenting in part.

The majority stated that Title VII prohibits two types of employer practices: (1)“disparate treatment” (or “intentional discrimination”); and  (2) “disparate impact.” It pointed out that these are the only causes of action under Title VII. According to the majority, Abercrombie’s primary argument was that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. It disagreed with the employer’s premise.

Instead, the majority found that an applicant/employee need only show “that his need for an accommodation was a motivating factor in the employer’s decision.” It concluded that the use of term “because of ” in the disparate treatment provision of Title VII “does not impose a knowledge requirement.”  Emphasizing that Title VII’s intentional discrimination provision “prohibits certain motives, regardless of the state of the actor’s knowledge,” it pointed out that “[m]otive and knowledge are separate concepts.”

Justice Scalia stated:

An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

According to the majority, “If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”  It rejected Abercrombie’s suggestion that the Court adopt a rule requiring the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. It found that such a rule would add a knowledge requirement to Title VII that does not presently exist in the law and can only be added by Congress, in its legislative capacity.

Justice Alito’s opinion concurring in judgement began by addressing Title VII’s disparate treatment and disparate impact provisions:

When these two provisions are put together, the following rule (expressed in somewhat simplified terms) results: An employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual’s religious observance or practice unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice without undue hardship.

He parted from the majority on the point of whether actual knowledge is required under Title VII. While pointing out that the “relevant provisions of Title VII, … do not impose the notice requirement that formed the basis for the Tenth Circuit’s decision,” Alito found “the evidence of Abercrombie’s knowledge is sufficient to defeat summary judgment.”

Justice Alito, contrary to the majority,  said that he would “hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”

While agreeing that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason, Alito said, “A plaintiff need not show, however, that the employer took the adverse action because of the religious nature of the practice.”

Justice Thomas’s concurrence in part and dissent in part stated that his sole point of agreement with the majority is that Title VII only provides for disparate treatment and disparate impact as causes of action.Unlike the majority, he said, “Mere application of a neutral policy cannot constitute ‘intentional discrimination.'”

Based on the facts and the language of Title VII, Thomas  concluded:

I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith.

He also rejected  the “majority’s novel theory of intentional discrimination” on the ground the theory “is also inconsistent with the history of this area of employment discrimination law.” According to Thomas, Supreme Court and lower federal court precedent has consistently refused “to  equate a failure to accommodate with intentional discrimination.” He also noted that prior to the Court granting review in the present case the “EEOC too understood that merely applying a neutral policy did not automatically constitute intentional discrimination giving rise to a disparate-treatment claim.”

While applauding the majority for having put “to rest the notion that Title VII creates a freestanding religious-accommodation claim,” Thomas criticized the majority for creating “in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment.”

EEOC v. Abercrombie & Fitch Stores, 14-86 (U.S. Jun. 1, 2015)

[Editor’s Note: Above is a more detailed summary of the Supreme Court’s decision in EEOC v. Abercrombie v. Fitch, including summaries of Justice Alito and Justice Thomas’s opinions.

 In March 2015, Legal Clips summarized an article in The Christian Science Monitor reporting that the U.S. Supreme Court heard argument from the parties in EEOC v. Abercrombie & Fitch, No. 14-86, a Title VII suit addressing whether an employer has a duty to provide religious accommodation even if the employee ( or job applicant) has not explicitly sought accommodation. The question before the justices was who has the burden of raising the issue of a potential religious accommodation, the employer or the employee/job applicant.

In January 2015, Legal Clips published a Sua Sponte article reporting that a coalition  of organizations representing the interests of public sector employers, which includes the National School Boards Association (NSBA), filed an amicus brief on the merits with the U.S. Supreme Court in EEOC v. Abercrombie & Fitch Stores , No. 14-86,  urging the Court to affirm the U.S. Court of Appeals for the Tenth Circuit’s decision that under Title VII an employer is only required to provide an employee or prospective employee with a religious accommodation when the employer has actual knowledge of the need for accommodation. The amici stated in their brief: “EEOC’s proposed change to the analytical framework of religious accommodation cases under Title VII, if adopted by this Court, interjects stereotyping into the hiring process and will have far-reaching consequences for state and local governments.”]

 

Federal district court in Washington state overturns student’s suspensions for preaching and distributing religious materials on school grounds, but upholds school district’s time, place and manner restrictions on preaching and distributing the materials

According to the HearldNet, a federal district court in Washington state has ruled that the part of Everett Public Schools’ (EPS) policy limiting when and where students can hand out printed materials is constitutional, but the part of that policy that requires the printed material to have been written or produced by the student fails to pass constitutional muster. Michael Leal, a student at Cascade High School, was suspended three times for loudly preaching and handing out religious pamphlets at the school. Leal was represented by the Pacific Justice Institute (PJI).

In November 2014, Leal filed suit against Everett Public Schools, Superintendent Gary Cohn, Cascade Principal Cathy Woods and two assistant principals, claiming his constitutional right to free speech was being infringed upon by the school’s actions and the district’s policies. U.S. District Court Judge Thomas S. Zilly upheld the portion of EPS’ policy that imposes time, place and manner restrictions on student distribution of printed materials. EPS policy states that students can only do so before or after the hours of instruction, and only outside the entrances of the school.

However, the judge struck down that portion of the policy that requires the printed material to have been written or produced by the student. “The court found that was unconstitutional because he wouldn’t be able to pass out the Constitution or Shakespeare,” said attorney Kevin Snider of PJI.

Leal will continue to be allowed to preach on campus provided it does not disrupt instruction. To accommodate this, the school created a “free speech zone” on campus near the statue of the school’s bear mascot, Snider said, where any student can speak about anything. As a result, Leal dropped the charges of discrimination against his religion, Snider said.

Judge Zilly also expunged Leal’s three suspensions from his record. Sarah Heineman, EPS’ attorney, said the administration was pleased its policy was upheld. She added that EPS had not yet decided whether to appeal Zilly’s ruling stripping the authorship requirement out of the district’s policy.

Source: HeraldNet, 5/29/15, By Chris Winters

[Editor’s Note: PJI’s press release announcing Judge Zilly’s decision stated he issued a bench ruling, thus no written opinion. According to PJI’s release, the judge agreed with attorneys for Pacific Justice Institute that the school’s rule limiting students to the distribution of only literature that was written by themselves or fellow students could not survive First Amendment scrutiny.  

In October 2012, Legal Clips summarized a decision by a federal district court magistrate in Florida in Gilio v. School Bd. of Hillsborough Cnty. recommending  that the district court grant an elementary school student’s motion for a preliminary injunction barring a school district from enforcing its policy prohibiting the distribution of religious materials on school grounds unless the distribution of such materials would materially and substantially interfere with schoolwork or discipline. The magistrate concluded that the student was substantially likely to succeed on the merits of his claim that the school officials’ decision to prevent him from distributing invitations, during non-instructional time, to an Easter egg roll at his church violated his First Amendment free speech rights based on the U.S. Court’s decision in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).] 

Illinois federal district court rules school district did not violate individual’s free speech rights when school official instructed him to stay off of school property and adjacent public sidewalk while distributing religious materials to students

Duehning v. Aurora East Unified Sch. Dist. 131, No. 13-5617 (N.D.Ill. Apr. 20, 2015)

Abstract: A federal district court in Illinois has ruled that neither a high school administrator nor the school district violated the First Amendment free speech rights of an individual distributing religious materials to students on a public street adjacent to school property when the administrator, pursuant to school district policy/custom, instructed the individual to leave school property and the school safe zone, and then had the school resource officer (SRO) order the individual to leave. It concluded that the “mere attempt” to deprive an individual of his free speech rights did not amount to a First Amendment violation. As to the school district, the court concluded that there was no municipal liability because no constitutional violation occurred.

The district court also rejected the plaintiff’s class-of-one Fourteenth Amendment equal protection claim. It found that he had failed to identify any similarly situated individual, much less one who was similarly situated and treated differently. In addition, the court held that the plaintiff was not entitled to declaratory relief under federal law because the school district was not liable on the underlying § 1983 free speech or equal protection claims. Recognizing “the tension between maintaining traditional public fora, such as sidewalks, for First Amendment activity, and permitting school districts to effectively manage school property and property immediately adjacent on behalf of student,” it nonetheless, citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), stated: “Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it `materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’”

Facts/Issues:  Josiah Duehning, a local resident, often travels to high schools and colleges in the area to hand out pamphlets and engage students in conversations about Christianity. Duehning was a frequent presence on the sidewalk in front of East Aurora High School, and though he had been told in the past to cross the street, he regularly ignored those warnings to no consequence.

On August 28, 2014, however, when Duehning ignored the direction of an East Aurora High School Dean of Students Joy Chase to leave the sidewalk in front of the school, and instead moved off the sidewalk onto school property to talk to a group of students, Chase called the school’s school resource officer. The officer required Duehning to identify himself, directed him again to leave the sidewalk in front of the school, and when Deuhning refused, physically restrained him, warning “I WILL take you down.” Duehning was subsequently arrested and searched, and a knife was found on his person.

Duehning filed suit in federal district court under § 1983 against Aurora East Unified School District 131 (AEUSD) and Dean Chase, among others. He claimed that both Chase and AEUSD had violated his First Amendment free speech rights. He also brought a class-of-one Fourteenth Amendment equal protection claim against ARUSD. In addition, Duehning sought declaratory relief under the federal Declaratory Judgments Act (DJA).

Both AEUSD and Duehning filed motions for summary judgment.

Ruling/Rationale: The district court granted AEUSD’s motion for summary judgment, and denied Duehning’s motion. Addressing the First Amendment speech claim against Chase, it pointed out that her purported attempt to curtail Duehning’s First Amendment rights was unsuccessful. The court stressed that U.S. Court of Appeals for the Seventh Circuit (which includes Illinois in its jurisdiction) has made clear “that the mere attempt to deprive a person of his First Amendment rights is not, under usual circumstances, actionable under section 1983.” As a result, it concluded Duehning had not “sustained a constitutional deprivation cognizable under Section 1983.”

The district court next turned to the First Amendment claim against AEUSD based on the theory of municipal liability. In order to succeed on such a claim, “the unconstitutional policy or custom can be shown by: (1) an express policy causing the loss when enforced; (2) a widespread practice constituting a custom or usage causing the loss; or (3) a person with final policymaking authority causing the loss.” Because the court had already concluded that there was no First Amendment violation based on Chase’s actions, it concluded that there could be no municipal liability. It stated, “Having decided that municipal liability does not exist in this case, the Court need not reach the issue of whether the District maintained an unconstitutional policy or custom.”

The district court also rejected Duehning’s Fourteenth Amendment class-of-one equal protection claim. It pointed out: “A plaintiff alleging a class-of-one equal-protection claim must establish that (1) a state actor has intentionally treated him differently than others similarly situated, and (2) there is no rational basis for the difference in treatment.” It found that “[o]ther than his reference to hypothetical labor picketers,” Duehning had failed to “identify any specific similarly situated people who were treated differently, let alone people who are similarly situated in all material respects.”

Finally, the district court held Duehning was not entitled to declaratory relief under the DJA because the school district was not liable on the underlying § 1983 free speech or equal protection claims. Recognizing “the tension between maintaining traditional public fora, such as sidewalks, for First Amendment activity, and permitting school districts to effectively manage school property and property immediately adjacent on behalf of student,” it nonetheless, citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969), stated:

Just as Tinker made clear that school property may not be declared off limits for expressive activity by students, we think it clear that the public sidewalk adjacent to school grounds may not be declared off limits for expressive activity by members of the public. But in each case, expressive activity may be prohibited if it ‘materially disrupts classwork or involves substantial disorder or invasion of the rights of others.’

Duehning v. Aurora East Unified Sch. Dist. 131, No. 13-5617 (N.D.Ill. Apr. 20, 2015)

[Editor’s Note: In July 2014, Legal Clips summarized an article in Courthouse News Service reporting that a U.S. District Court in Florida had dismissed a suit brought by the Freedom From Religion Foundation (FFRF) against the Orange County School Board (OCSB) charging  the board barred FFRF from distributing materials in the district’s schools  criticizing various religions. The suit alleged a group called the World Changers of Florida (WCF) had been allowed to distribute copies of the Bible, the plaintiffs said their treatment amounted to a violation of the First and Fourteenth  Amendments.] 

New York state court rules that suit charging state method of funding charter schools is unconstitutional and discriminates against minority students may proceed

The Buffalo News reports that State Supreme Court Justice Donna M. Siwek ruled a suit filed by charter school parents, students and the Northeast Charter School Network (NCSN) is valid. Justice Siwek rejected the state’s motion to dismiss the suit, holding the plaintiffs  have standing and sufficiently alleged that they were harmed. However, the justice dismissed the plaintiffs’ claim against  Gov. Andrew M. Cuomo.

The plaintiffs’ attorney, Susan T. Dwyer, applauded the ruling, saying, “I think I can speak for every student in a charter school in New York today, and every other one who would like to be, in saying how encouraged we are by this landmark decision which acknowledges that charter school students have a right to ask the court to recognize their constitutional rights as public school students in this state.”

The suit alleges that charter schools, such as those the students attend, are funded at a lower rate per pupil – about 60 cents per dollar – than traditional public schools. That, they contend, is “unfair and unbalanced.” It also claims he state’s approach to funding charter schools fails to fund facilities. That means the charter schools are forced to use money that should be allocated for student educational programs to fund the physical plant.

The lawsuit seeks a court order to compel the state to revise its funding formula to provide charter schools with he ability to offer a “sound basic education” to students as is required under state education law. The plaintiffs contend that New York state’s method of funding charter schools violates the charter school students’ right to equal protection under the law and is disproportionately harmful to minority charter school students; about 90% of the enrollment in charter schools are minorities, compared with about 42% in noncharter public schools.

NCSN points out similar claims have been raised by charter school parents in four others states – North Carolina, New Jersey, Arizona and Texas. However, those suits failed to make it as far as the New York state suit.

Source: The Buffalo News, 5/27/15, By T.J. Pignataro

[Editor’s Note: In NCSN’s press release announcing Justice Siwek’s ruling, NCSN CEO Kyle Rosenkrans said, “In the end, the judge saw what we saw – that these five brave families deserve their voices to be heard. We are proud of them for standing up for their children and all of our state’s charter school children who have been for too long deprived of fairness.” The legal complaint is also available on NCSN’s website.

In September 2014, Legal Clips summarized an article in The Wall Street Journal reporting that a group of charter school supporters had filed suit alleging that a chronic funding gap between charter schools and traditional public schools, in the state of New York, violates the state constitution and disproportionately hurts minority students. According to the suit, charter students in Buffalo received around $9,800 less than their district school counterparts in the 2011-12 school year, which it indicated was the largest disparity in the state. In Rochester, charter school students received around $6,600 less. Approximately 79% of New York charter school students are low income and 93% are students of color.]

 

Michigan Senate approves bill that would strip families of welfare benefits if child is chronically truant

The Michigan Senate, in a 26-12 vote, approved legislation that would allow the state to cut off Family Independence Program assistance if a child was chronically truant, says mlive. Under the bill, dubbed the “parental responsibility act,” if the child is younger than 16, the whole family could lose cash benefits. If the child is 16 or older, they would be removed from the family group, which could continue to receive some assistance. “The whole goal here is to make sure that children are in school, because they will succeed and they will have the chance to move ahead in their life if they are in school,” said state Sen. Judy Emmons.

The Michigan Department of Human Services  has already implemented a similar truancy program. In fiscal year 2014, 189 families or individuals were sanctioned for missing school, according to the non-partisan Senate Fiscal Agency. The legislation, which already passed the House in an earlier form, now returns to the lower chamber for a final vote before heading to the desk of Gov. Rick Snyder.

The Michigan League for Public Policy (MLPP), noting that more than half a million Michigan children currently live in poverty, is already urging the governor to veto the bill. “The goal of increasing school attendance is laudable; we all want students in school, learning and getting the education needed to end the cycle of poverty,” MLPP President Gilda Jacobs said. “But this bill won’t get kids to school. However, it is certain to push more kids deeper into poverty, making it even more difficult to get to school.”

Source: mlive, 5/26/15, Jonathan Oosting

[Editor’s Note: In June 2013, Legal Clips summarized an Associated Press article in the San Francisco Chronicle reporting that several organizations had filed a complaint with the U.S. Department of Justice (DOJ) claiming Dallas-area public schools are too harsh in their truancy rules, subjecting students to cruel and unusual punishment by handcuffing them in class, sending them to special adult courts and assessing stiff fines for skipping school.  The complaint, filed by Texas Appleseed, Disability Rights of Texas, and the National Center for Youth Law with DOJ’s Civil Rights Division, charges that the Dallas Independent School District (DISD) and the nearby districts in Garland, Mesquite, and Richardson are using “inconsistent and inflexible” attendance polices that violate the civil rights of students with disabilities and limited English proficiency.  Dallas ISD is further alleged to have violated the civil rights of pregnant students in prosecuting truancy.]

Class action suit charges aerospace firm dumped toxic chemicals in ground next to California elementary school

According to ABC News 10, a class action lawsuit has been filed against Ametek Aerospace & Defense (AAD) on behalf of parents, students and teachers at Magnolia Elementary School (MES). Attorney John Fiske of Gomez Trial Attorneys, who are representing the plaintiffs, said, “They dumped up to 7,000 gallons of chlorinated solvent waste into the ground a month.” He added, “That waste has created the largest TCE plume underground in the state of California.”

AAD is located next door to MES. The complaint alleges the company started dumping chemicals into the ground in the 1960s. “Back in 1963 a company called Ametek used to own this facility and was dumping chlorinated solvents into a sump into a ground. A sump is a hole in the ground,” said Fiske. The lawsuit claims the sump was lined with cedar planks that did little to stop the chemicals from getting into the ground.

Some 50 years later, parents say their children are getting sick because of the chemicals AAD dumped. Fiske said the company dumped chemicals like TCE, PCE and DCE into the ground until the 80’s. The hazardous and toxic chemicals are linked to cancer, liver and kidney problems.

News 10 says the Claifoirnia Department of Toxic Substance Control (CDTSC) has been collecting soil, gas and indoor air samples four times a year since 2008.  News 10 alleges CDTSC told the news station that the site does not pose an immediate threat to students based on current data, but News 10 found reports from the same agency showing cancer risk levels higher than acceptable in March 2015.

The San Diego Regional Water Quality Board ordered AAD to study and clean up the site in 2009. AAD was fined $2 million dollars when they didn’t comply. “We think the water board and the DTSC has been trying to get Ametek to comply,” said Fiske.

While the dumping stopped in the 1980s, the chemicals didn’t just go away. “Chemicals are degrading and the vapor is intruding from the ground and into the classrooms,” said Fiske

The lawsuit would require Ametek to pay for medical monitoring of students in the school. “So they can monitor their health to see if their health has been affected by these chemicals,” said Fiske.

Source: ABC News 10, 5/26/15, By Cristin Severance

[Editor’s Note: In December 2014,  Legal Clips summarized an article in the Detroit Free Press reporting that Theresa Ely, a custodian with Dearborn Heights Schools District No. 7 (DHSD7), had 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.]

 

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