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Fourth Circuit panel rules that plaintiffs claiming peer sexual harassment under Title IX must show that district was deliberately indifferent, rather than merely negligent

Doe v. Board of Educ. of Prince George’s Cnty., No. 13-2537 (4th Cir. Apr. 7, 2015)

Abstract: A U.S. Court of Appeals for the Fourth Circuit three-judge panel, in a per curiam (unauthored) opinion, affirmed a lower court’s decision granting a school district summary judgment on a student’s Title IX claim of peer sexual harassment. The panel applied a deliberate indifference standard, to determine liability under Title IX, rather than the negligence standard that the plaintiffs sought. The Court also declined to apply the U.S. Department of Education‘s (ED) Office for Civil Rights (OCR) guidelines in this case because there was no evidence that school officials were aware that their efforts to remediate the harassment were ineffective.

Finally, the panel upheld the lower court’s decision to grant summary judgment on the state law negligence and gross negligence claims.

Facts/Issues: J.D. attended school in Prince George’s County School District (PGCSD). J.D. was sexually harassed by another student, M.O., over a two-year period. School officials responded to those incidents that were reported. J.D.’s parents withdrew him from PGCSD in August 2010. In November 2011, the parents filed suit against Prince George’s County Board of Education (PGCBOE). The suit alleged that PGCBOE had discriminated against J.D. on the basis of sex in violation of Title IX. It also contended that PGCBOE and J.D.’s principal were liable for negligence and gross negligence under Maryland law.

At issue in the case was the standard that courts should use to hold a school district liable for money damages, for the alleged harassment and sexual assault of a student by another student, under Title IX. Title IX is a federal civil rights statute that prohibits sex discrimination in education programs receiving federal funds. The parents offered guidance documents from the U.S. Department of Education’s Office for Civil Rights (OCR) – along with “expert” reports and testimony – to support their claim that the school district did not do enough to investigate the reports of harassment and would have been able to prevent the alleged subsequent assaults had they done so.

The district court granted PGCBOE’s motion for summary judgment on both the Title IX and state law claims. It concluded that the Title IX claim failed to survive summary judgment because the parents could not establish a basis for imputing liability to PGCBOE. It found that the parents had failed to prove that school officials were deliberately indifferent to those incidents reported to them.

Ruling/Rationale: The Fourth Circuit panel affirmed the district court’s grant of summary judgment to PGCBOE on both the Title IX and state law claims. Regarding the Title IX claim, it concluded that liability for M.O.’s sexual harassment of J.D. could not be imputed to PGCBOE. The panel rejected the parents’ invitation to apply the less rigorous negligence standard to Title IX in order to determine if the school board should be held liable. Instead, it found that the deliberate indifference standard established in Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), is the correct standard for determining a school district’s Title IX liability based on peer sexual harassment.

The panel agreed with the district court that “as a matter of law……. the Board’s responses to M.O.’s harassment of J.D. were not clearly unreasonable” and, as a result, they did not constitute deliberate indifference. It rejected the parents’ contention that PGCBOE was legally at fault for “failing both to discern an escalating pattern of harassment and to take effective corrective actions.”

The panel further rejected the parents’ reliance on the Sixth Circuit decision in Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000), and OCR’s 1997 guidance, which stood for the proposition “that a response is ‘clearly unreasonable’ when it is not calculated to be effective, or when repeated harassment demonstrates that it has not been effective.” The panel found the parents’ theory flawed because: “Adopting the rationale of Vance and the OCR Guidelines would not help the Does, however, because this is not a case where the Board had actual knowledge that its efforts to remediate [were] ineffective, and it continue[d] to use those same methods to no avail.”

Lastly, the panel rejected the parents’ argument that the PGCBOE’s failure to adhere to its sexual harassment policies was evidence of deliberate indifference. It stated: “The district court properly rejected that contention, however, on the ground that ‘the failure to follow sexual harassment grievance procedures does not prove deliberate indifference under Title IX.’”

Doe v. Board of Educ. of Prince George’s Cnty., No. 13-2537 (4th Cir. Apr. 7, 2015)

[Editor’s Note: Prince George’s County Board of Education was represented by COSA member Abbey Hairston.

 In December 2014, Legal Clips published a summary of the oral argument in Does v. PGCBOE, based on the observations of  COSA member Leslie R. Stellman who attended the argument.  He astutely stated: 

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

California agrees to pay $275,000 to settle invasion of privacy suit brought by teacher who is currently on unpaid leave facing disciplinary hearing over alleged inappropriate relationship with female student

According to the Whittier Daily News, East Whittier City School District (EWCSD) has agreed to pay Charles Brautigam, a teacher at Granada Middle School, $275,000 to settle an invasion of privacy lawsuit that alleged that school district officials accessed personal accounts on his school computer. Brautigam’s suit claims that in February 2013, EWCSD officials seized his computer after launching an investigation into whether he had an improper romance with a 17-year-old La Serna High School student in 2006. Brautigam is currently on unpaid leave while awaiting a scheduled August 2015 hearing before the state’s Office of Administrative Hearing Board regarding the alleged inappropriate relationship.

Karl Kronenberger, Brautigam’s attorney, said district officials took his laptop after Brautigam was placed on leave. “They got his passwords in his gmail account and then proceeded to snoop through all of his email, including attorney-client information,” Kronenberger said. “They went through other accounts as well,” he said. “It was such a horrible breach of privacy. The communication people store in their personal email have a lot of private things, such as medical, financial, personal and family issues.”

EWCSD Superintendent Mary Branca  said the district settled the lawsuit, which was filed in August 2014, on the advice of its attorneys, rather than going to trial. “Most of this will be paid by our insurance,” she said. “It’s a complicated case and this was part of an investigation we’re doing where we thought there was wrongdoing against our students.” Branca added employees shouldn’t have an expectation of privacy on the district-issued computers, but in the future, district officials will not access private emails.

Source: Whittier Daily News, 3/28/15, By Mike Sprague

[Editor’s Note: In April 2012, Legal Clips summarized an article by WSBT TV in the South Bend Tribune reporting that Kimberly Hester, a teacher’s aide at Frank Squires Elementary in Cassopolis, Michigan, is in a legal battle with Lewis Cass Intermediate School District (LCISD) for suspending her from her position after she refused to give the district access to her Facebook page.  Hester says she became a target for disciplinary action after posting a  picture on her personal Facebook page, showing a co-worker’s pants around her ankles and a pair of shoes. According to a letter from the Cassopolis schools superintendent to LCISD Superintendent Robert Colby, a parent, who was friends with Hester on Facebook, notified the school about the picture.]

School administrators’ group withdraws from suit challenging the constitutionality of Florida’s tuition tax credit program

The Sunshine State News reports that the Florida Association of School Administrators (FASA) has announced that it is withdrawing from a suit brought by a coalition of education groups challenging Florida’s tax credit scholarship program. The program allows companies to donate to education nonprofits for tax breaks and the nonprofit organizations then give out voucher scholarships to needy students, which allows them to attend private schools.

FASA said its decision involved “reprioritizing” to focus on the priorities at the heart of FASA. “[The board of directors] was looking at our priorities for the association and where we’re directing our attention, and they felt that the focus really needed to be on teaching and learning and making sure that our administrators statewide are receiving a level of professional development that would impact and support students and teachers in a positive way,” said FASA Director of Communications Michele White.

Although FASA has withdrawn its name from the legal battle, it’s still on board with ending the tax credit scholarship program. The Florida Education Association (FEA), which is heading the coalition, insists that it has no intention of dropping the suit. “This happens sometimes when groups decide they have particular priorities and it doesn’t concern us much at all,” said FEA spokesperson Mark Pudlow, who also said he hadn’t heard of any other involved groups intending to withdraw their names from the suit. The court is currently considering whether the members of the coalition have standing to bring the suit.

Source: Sunshine State News, 3/30/15, By Allison Nielsen

[Editor’s Note: In December 2014, Legal Clips summarized an article in Flaglerlive.com reporting that Leon County Circuit Court Judge George Reynolds III has granted the request of a group of parents, whose children are the recipients of private school scholarships through the Florida Tax Credit Scholarship program, to intervene as a defendant in a lawsuit challenging the validity of the program under the state constitution. The parents’ group argued that it should be allowed full-party status because the children of those parents would lose access to the scholarship program if the court finds it unconstitutional.]



Eleven former Atlanta district employees convicted of racketeering charges in test cheating scandal

The New York Times reports that an Atlanta jury convicted 11 educators for their roles in a standardized testing scandal. 11 of 12 former teachers, testing coordinators and administrators employed by Atlanta Public Schools (APS) were convicted on criminal charges related to a standardized test cheating scandal that tarnished a major school district’s reputation and raised broader questions about the role of high­stakes testing in American schools. The jury found the 11 guilty of racketeering, a felony that could result in a 20 year prison term. A number of the 11 were also convicted of other charges, such as making false statements, that could add years to their sentences. Dessa Curb, a former elementary school teacher, was the only one of the 12 who was acquitted on all charges.

Most of the convicted defendants were immediately jailed. “Our entire effort in this case was simply to get our community to stop and take a look at our educational system,” District Attorney Paul L. Howard Jr. said, adding, “I think because of the decision of this jury today that people will stop. I think people will stop, and they will make an assessment of our educational system.”

The dozen educators who stood trial, including five teachers and a principal, were indicted in 2013 after years of questions about how Atlanta students had substantially improved their scores on the Criterion-Referenced Competency Test, a standardized examination given throughout Georgia. In 2011, an investigation ordered by Georgia Gov. Sonny Perdue concluded that cheating had occurred in at least 44 schools and that the district had been troubled by “organized and systemic misconduct.” Nearly 180 employees, including 38 principals, were accused of wrongdoing as part of an effort to inflate test scores and misrepresent the achievement of Atlanta’s students and schools.

The investigators wrote that cheating was particularly ingrained in individual schools, but they also said that the district’s top officials, including Superintendent Beverly L. Hall, bore some responsibility. Their report indicated that Dr. Hall and her aides had “created a culture of fear, intimidation and retaliation” that had permitted “cheating — at all levels — to go unchecked for years.”

Dr. Hall, who died on March 2, insisted that she had done nothing wrong and that her approach to education, which emphasized data, was not to blame.  “I can’t accept that there’s a culture of cheating,” Dr. Hall said in an interview in 2011. “What these 178 are accused of is horrific, but we have over 3,000 teachers.”

The case unfolded at a time of pushback against what some see as the excesses of standardized testing. While the Atlanta scandal fueled some criticism, those who oppose testing also argue that the exams force teachers to narrow their lessons and may not represent what students learn. Coming amid a political groundswell against academic standards known as the Common Core, the scandal was just one factor in an increasing debate over testing and its role in education.


Source: The New York Times, 4/1/15, By Alan Blinder

[Editor’s Note: In August 2014, Legal Clips summarized an Associated Press story on cbsnews.com reporting that more than a year after 35 Atlanta Public Schools (APS) educators were indicted in a school cheating scandal, 12 people were set to go to trial that Monday. The former administrators, principals, testing coordinators, and teachers all faced racketeering charges. Individual charges included influencing witnesses and lying to state investigators. Prosecutors have said that more than 30 educators participated in a conspiracy to cheat on standardized tests dating back to 2005 and that the cheating was motivated by pressure to meet federal and APS standards and receive bonuses or keep their jobs.

As an example of the pushback on standardized testing referred to The New York Times article: In May 2013, Legal Clips summarized an article in the Democrat and Chronicle reporting that a federal judge denied a request for a temporary restraining order to prevent a New York school district from disciplining students who refused standardized tests. Judge Michael Telesca denied a request for a temporary restraining order filed by Melissa and Craig Barber, whose son was held out of baseball games and practice because he didn’t take the tests. In the Rush-Henrietta school district, students in third through eighth grades who refuse to take the state tests are considered insubordinate. On the second insubordination offense, students lose a day of recess and extracurricular activities. The parents filed suit against the school district, the NY state department of education, and others, asking the court to prevent the district from disciplining students and referring parents to Child Protective Services because of their refusal to participate in standardized testing. The parents also asked the court to order the State Department of Education to write regulations to protect students from retaliation and create uniform standards across the districts. The parents contended that they “have a right to reject these [standardized] tests”, and the school district violated their Fourteenth Amendment rights by punishing their child. The parents sought the restraining order because of the irreparable harm caused by the finding of insubordination.]


Sixth Circuit panel denies outside religious group’s motion for preliminary injunction ordering Ohio district to waive the facilities use fee for the group’s after school program

Child Evangelism Fellowship of Ohio v. Cleveland Metro. Sch. Dist., No. 14-3172 (6th Cir. Mar. 19, 2015)

Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel, in a 2-1 split, has upheld a federal district court’s denial of a preliminary injunction, which would have barred a school district from imposing a facilities use fee on a religious organization that operates an after-school club in one of the district’s schools. The panel’s majority rejected the organization’s argument that the school district has an unwritten fee-waiver policy that allows school principals to waive facilities fees and that such a waiver was offered to the Boys Scouts in violation of the First and Fourteenth Amendments. It found, instead, that the school district “in limited circumstances” accepts goods and services as in-kind payment of the fees when an organization makes such a request. The panel concluded that based on the slim record available at this stage of the litigation the religious organization failed to show that a fee-wavier policy even exists.

The panel also rejected the religious organization’s argument that the in-kind arrangement policy/practice  amounts to viewpoint discrimination, constituting an impermissible prior restraint under the First Amendment. It found that the issue had not been fully briefed in the district court and, therefore, it would not address the issue since it had not been considered by the lower court.

Facts/Issues: Cleveland Metropolitan School District (CMSD) maintains a Community Use Policy (CUP) that makes district facilities available to outside groups on a monetary fee basis. The CUP requires a permit for any non-district activities and contemplates that CMSD will impose a “reasonable fee” for use of the facilities. During the time period giving rise to this suit, CMSD charged a fee of $69.50 per hour for use of its facilities.

Child Evangelism Fellowship of Ohio (CEF-OH) was operating a “Good News Club” (GNC), at Miles Cranwood Elementary School (MCES), which purported to “encourage learning, spiritual growth and character development from a Christian viewpoint.”  CEF-OH claims it was not charged a fee during 2011-12 school year, a fact disputed by CMSD. However prior to the 2012-13 school year, MCES’s principal informed CEF-OH that the organization would have to obtain a permit for the GNC and pay the annual fee for the upcoming year.

After obtaining the permit, CEF-OH sent a letter to CMSD’s school board requesting a fee waiver. The letter detailed GNC’s offerings and highlighted the fact that participation was free for all students. The school board denied the request and sent CEF-OH an invoice for the facilities fee. CEF-OH subsequently learned that the Boy Scouts were permitted to use CMSD’s facilities without paying a monetary fee. Once it learned that, it renewed its request for a fee-waiver, both personally and in writing. CMSD did not respond to the requests.

CEF-OH’s attorney then sent a letter to CMSD officials asserting that persons within the Boy Scout organization had confirmed that the Boy Scouts were being allowed to use the facilities, without having to pay a fee, and alleging that the district was engaging in discriminatory policies and practices. The letter once again demanded an immediate waiver of all fees. CMSD did not respond to that request either.

CEF-OH filed suit in federal district court against CMSD alleging that CMSD had an unwritten policy allowing school principals to waive facilities fees at their discretion, and that CMSD’s preferential fee-waiver for the Boy Scouts amounted to a violation of the First and Fourteenth Amendments. CEF-OH filed a motion for a preliminary injunction that would bar CMSD from imposing the use fee.

Responding to the motion, CMSD denied having a fee-waiver policy or practice, but instead indicated that, “in limited circumstances [the District] has agreed to accept goods or services as in-kind payment of the Permit Fee, when requested by the group.” CMSD spelled out three criteria for evaluating in-kind proposals: “(1) the goods or services must be of equal or greater value than the Permit Fees; (2) the goods or services must be of tangible benefit to the facilities, staff, students, or academic programs; and (3) the District must not be in a position to readily provide or obtain those goods or services for itself.” CMSD acknowledged that it had an in-kind arrangement with the Boy Scouts. According to CMSD, the Boy Scouts provide $195 worth of supplies, uniforms, camping costs and books to each of the approximately 1,420 students who participate in the program. This $276,900 value exceeded the Boy Scouts’ yearly fee assessment of approximately $91,000.

CMSD further asserted that it does not consider the applicant organization’s viewpoint when evaluating a proposal for an in-kind arrangement, indicating to the court that it had an in-kind arrangement with an evangelical Christian church, which provides capital improvements to the school in exchange for its use of the facilities to hold religious services. It also noted that CEF-OH, unlike the Boy Scouts and the church, never proposed an in-kind arrangement and, instead, asked for a fee-waiver. CMSD insisted that the denial of the fee-waiver request was based on its policy against outright fee-waivers, rather than CEF-OH’s religious viewpoint.

The district court denied CEF-OH’s motion for a preliminary injunction. The court found that CEF could not demonstrate a likelihood of success on the merits because the record lacked sufficient evidence to show that “a fee-waiver policy exists, let alone that [the District] operates it in a discriminatory matter.”

Ruling/Rationale: The Sixth Circuit panel’s majority affirmed the lower court’s denial of CEF-OH’s motion. It agreed with the district court that CEF-OH’s “evidence in support of its request for injunctive relief did not adequately show that the District had a fee-waiver policy.” The majority, on the contrary, found that the record “at this early juncture” supported CMSD’s contention that it only accepts in kind payment in lieu of monetary fees.

The panel’s majority rejected CEF-OH’s argument that CMSD’s attempt to characterize its policy as a neutral in-kind arrangement is “litigation-driven label” allowing the school district to “evade [equal access].” It concluded that the cases cited by CEF-OH “in support of its position featured claims under the Equal Access Act—not the First Amendment—and involved attempts by school districts to limit forum access by differentiating arbitrarily between ‘curriculum-related’ and ‘non-curriculum-related’ groups.”

According to the majority, “The record at this stage shows that the Scouts and the Church provided consideration in excess of their assessed facilities fees, strengthening the District’s argument that its in-kind arrangements do not subsidize speech at all, let alone selectively.”

The majority also rejected CEF-OH’s alternative argument that the in-kind arrangement policy constitutes an impermissible prior restraint in violation of First Amendment’s Free Speech Clause. The majority noted that the issue, which was raised by CEF-OH in a reply brief to the district court, was not addressed by that court, and that as a general rule federal appellate courts do consider issues left unaddressed by a district court. Although CEF-OH  urged the court to consider the argument because the issue had been “fully briefed” at the district court level, the majority concluded that the issue had not been “fully briefed.” The majority stated: “CEF introduced this theory in a reply brief, and the court resolved the motion without a hearing, leaving the District no meaningful opportunity to respond to this claim with defenses or evidence of its own. We thus decline to take up this issue at this juncture.”

The dissent agreed with the majority that CEF-OH had not shown that there was a school district fee-waiver policy, however, it maintained that there was evidence that a fee-waiver practice existed between the Boy Scouts and CMSD. Specifically, the dissent argued that the goods and services provided by the Boy Scouts did not benefit CMSD, but rather benefited the participants in Boy Scouts, and, thus, the goods and services were not in lieu of the monetary fee that would be used to maintain the CMSD facility used by the Boy Scouts.

Child Evangelism Fellowship of Ohio v. Cleveland Metro. Sch. Dist., No. 14-3172 (6th Cir. Mar. 19, 2015)

[Editor’s Note: In February 2013, Legal Clips summarized an article from The Patriot News, which reported that the Child Evangelism Fellowship of Dauphin County Inc. (CEF) had filed suit in federal court against the Harrisburg School District (HSD), alleging that HSD’s demand for CEF to pay an annual rental fee of $1,200 to hold a Bible-based after-school program was not only excessive, but discriminatory. According to CEF, other non-profits, including the Boy Scouts, the Boys and Girls Clubs, and the American Legion were not charged for using HSD facilities.]


Ninth Circuit panel upholds award of attorney’s fees and costs to school district as prevailing defendant for ADA and § 1983 claims, but not for IDEA and § 504 claims

C.W. v. Capistrano Unified Sch. Dist., No. 12-57315 (9th Cir. Mar. 2, 2015)

Abstract: A U.S. Court of Appeals for the Ninth Circuit three-judge panel, in a 2-1 split, one judge concurring in part and dissenting in part, affirmed in part and reversed in part a district court’s award of attorney’s fees and costs to a school district as the prevailing defendant on the claims brought by a disabled student under the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), § 504 of the Rehabilitation Act (§ 504), and 42 U.S.C. § 1983. The panel’s majority affirmed the award as to the ADA and § 1983 claims, but reversed the lower court as to the IDEA and § 504 claims.

The majority agreed with the district court that the ADA and § 1983 claims were frivolous, concluding that the claims lacked any legal foundation, and the result was obvious. However, it rejected the lower court’s holding that the IDEA and § 504 claims were frivolous and/or brought for an improper purpose. The majority asserted that the factual basis for the IDEA and § 504 claims, in conjunction with the dearth of caselaw opposing such claims, demonstrated the claims were not frivolous.

With regard to the ADA and § 1983 claims, the majority found that they lacked any legal foundation and “the result is obvious.” It pointed out that the language in the ADA providing protection against intimidation does not extend to attempts to exercise rights granted or protected by the IDEA, which was the basis of the student’s claim. The majority stressed that it is well-established law that school districts in California cannot be sued for damages under § 1983 because under California law they are state agencies entitled to Eleventh Amendment immunity. It also concluded that the student could not obtain injunctive relief under § 1983 because she failed to indicate what she sought to enjoin or what injunctive relief would be possible in this case.

Finally, the majority rejected the district court’s conclusion that the student’s claims were frivolous and brought for an improper purpose, which  kept the parent from being held liable for attorney’s fees.

Facts/Issues: C.W., who suffers from multiple physical and mental disabilities, was eligible for special education services at a school in the Capistrano Unified School District (CUSD). After an Individualized Education Program (IEP) meeting in 2010, C.W.’s parent, K.S., agreed to an occupational therapy assessment for C.W. A licensed occupational therapist (OT) carried out the assessment. K. S. rejected the assessment and sought an independent educational evaluation ( IEE) pursuant to provisions of California law, which gives a parent the right to obtain an independent educational assessment at public expense if the parent disagrees with an assessment obtained by a school district.

CUSD refused the request for an independent educational evaluation at public expense and initiated a due process hearing before an administrative law judge (ALJ).  The hearing addressed two issues:  whether the OT assessment was appropriate, and whether CUSD committed a procedural violation under the IDEA by unnecessarily delaying the filing of its due process complaint. After the hearing, the ALJ concluded that the OT assessment was appropriate and that the school district’s delay in filing the due process claim did not constitute an “unnecessary delay.”

K.S.’s attorney wrote a letter offering to forego an appeal of the ALJ’s decision to federal district court if CUSD would fund the IEE for occupational therapy and pay his attorney fees and costs. CUSD’s counsel responded that continued litigation regarding the OT assessment would be frivolous and that the school district could seek sanctions if the administrative decision were appealed. K.S. appealed the ALJ’s decision in federal district court, adding additional claims for violations of the intimidation clause of the ADA, retaliation under §1983, and for retaliation pursuant to § 504. The new claims were based upon the theory that CUSD’s letter was an attempt to intimidate K.S. and keep her from pursuing her legal right to appeal the ALJ’s decision.

The district court affirmed the ALJ’s decision, denied K.S.’s request for attorney’s fees, and invited the District to seek attorney’s fees because the bases for appeal were frivolous. CUSD sought fees and costs and received an award of $94,602.34 in attorneys’ fees and $2,058.21 in costs from the court.

Ruling/Rationale: In a 2-1 split, the Ninth Circuit three-judge panel affirmed in part and reversed in part the lower court’s decision. The majority upheld the award of attorneys’ fees and costs as to the ADA intimidation claim and §1983 retaliation claim. However, it reversed the award of attorneys’ fees and costs as to the IDEA and §504 retaliation claim.

The panel’s majority began its discussion by asserting that § 1415 of the IDEA allows prevailing defendants to recover fees from a parent’s attorney and a parent “in certain rare circumstances.” Specifically, “a school district may recover attorney’s fees against the parent’s attorney where the complaint is ‘frivolous, unreasonable, or without foundation [frivolous prong]”  or “against a parent or her attorney, ‘if the parent’s complaint or subsequent cause of action was presented for any improper purpose [ improper purpose prong].” It stated that the frivolous prong is based on the standard established by the U.S. Supreme Court in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), and the improper purpose prong is based on Federal Rule of Civil Procedure 11 (FRCP 11).

Addressing the question of whether the IDEA claim was frivolous, the majority stated that applying the Christiansburg frivolousness standard in Karam v. City of Burbank, 352 F.3d 1188 (9th Cir. 2003), the Ninth Circuit held “[a] case may be deemed frivolous only when the result is obvious or the . . . arguments of error are wholly without merit.” It added that when there is little caselaw on point and “a claim raises a novel question, the claim is much less likely to be considered frivolous.”

As to the student’s IDEA claim, the majority concluded that “[t]o the extent the district court implied that the IDEA claims were frivolous at the administrative hearing stage, it erred.” It found nothing in the ALJ’s decision indicating that the claim was frivolous and in fact analysis of the ALJ’s findings of fact and conclusions of law reveals the “seriousness” of the claim. The majority stressed that at no point in the litigation did the IDEA claim become frivolous. It acknowledged that even though the claim was “poorly plead and argued and she ultimately lost,” it did not mean the claim was frivolous.

Instead, the majority concluded: “The factual basis for the claim in concert with the lack of apposite case-law demonstrates that this claim is not frivolous.” It found the “district court’s analysis of the frivolousness of the 41-day ‘unnecessary delay’ claim” faulty because the court “failed to cite any case law setting forth the standard for frivolousness.”

The majority then turned to the ADA intimidation claims and the retaliation claims under §1983 and § 504. It disposed of the ADA and §1983 claims quickly on the grounds that those claims lacked “any legal foundation and ‘the result is obvious.’”  The majority indicated that the language in the ADA providing protection against intimidation does not extend to attempts to exercise rights granted or protected by the IDEA, which was the basis of the student’s claim. The court stressed that it is well-established law that school districts in California  cannot be sued for damages under § 1983 because state law considers them to be state agencies, which are entitled to immunity under the Eleventh Amendment. It also concluded that the student could not obtain injunctive relief under § 1983 because she failed to indicate what she sought to enjoin or what injunctive relief would be possible in this case.

On the other hand, the majority concluded that the § 504 claim was not frivolous because even though the claim was dismissed by the district court, that court’s “reasoning made clear, ‘[the student] present[ed] evidence that, if believed by the fact-finder, would [have] entitle[d] [her] to relief.’” Finally, it rejected the district court’s conclusion that the student’s claims were brought for an “improper purpose, thus exposing [the parent] to liability for attorney’s fees.”

The majority indicated that as a matter of law in the Ninth Circuit “a non-frivolous claim is never filed for an improper purpose.” As a result, it only considered the ADA and §1983 claims. Unlike the district court, the majority did not view “the terms of the settlement offer” as an “attempt by [the parent] to ‘ransom’ the appeal in exchange for any improper gain.” It also stated: “The record fails to reflect the one-sided effort to ‘unnecessarily increase the litigation costs incurred by District until it acquiesced to lining the pockets of her nonattorney advocate’ described by the district court.” Lastly, the majority declared, “To the extent that the district court’s frustration with K.S. and counsel colored its legal conclusions that these claims were brought for an improper purpose, this was error.”

The concurring/dissenting judge concurred with the majority’s holding as to the IDEA and § 504 claims. However, he dissented as to the majority’s conclusion that the ADA and §1983 claims were frivolous. The judge stated: “My colleagues, however, perhaps out of a desire to give something to both sides, partially affirm the district court’s decision by holding that the claims under the ADA and § 1983 were frivolous, although those claims were based entirely on the very same facts that underlay the nonfrivolous claim under the Rehabilitation Act.”

The dissenting judge stated that the majority’s decision to “impose sanctions on a small special education law firm for mere overpleading is important, as it creates extremely bad law.”  He added, “I strongly disagree that the plaintiff’s filing of her ADA and § 1983 claims justifies any sanctions at all, and I dissent from that portion of the majority opinion.”

C.W. v. Capistrano Unified Sch. Dist., No. 12-57315 (9th Cir. Mar. 2, 2015)

[Editor’s Note: In November 2010, Legal Clips summarized a decision by a U.S. Court of Appeals for the Fifth Circuit three-judge panel in El Paso Indep. Sch. Dist. holding that a school district, which had offered a student all requested relief under the Individuals with Disabilities Education Act (IDEA), was a prevailing party for the purposes of recovering attorneys fees under IDEA from the student’s attorney, and was entitled to such fees because the attorney “continued to litigate claims after they clearly became frivolous, unreasonable, and without foundation.” The panel concluded that because the attorney had conceded in district court that the school district was a prevailing party under IDEA, it had waived this threshold issue on appeal.] 

Sua Sponte: U.S. Supreme Court declines to review petition by outside religious group seeking use of school facilities for Sunday worship services and rejects petition by students and parents claiming school district violated their constitutional rights by prohibiting the display of American flag on campus during school-sponsored Cinco de Mayo day celebration

On Monday, March 30, 2015, the U.S. Supreme Court denied petitions for certiorari in Bronx Household of Faith v. Board of Educ. of the City of New York, No. 14-354, and Dariano v. Morgan Hill Unified Sch. Dist., No. 14-720.

In Bronx Household of Faith, the Supreme Court let stand a 2-1 decision by a U.S. Court of Appeals for the Second Circuit three-judge panel holding that a school board’s regulation prohibiting outside groups from holding religious worship services in school facilities outside school hours does not violate the First Amendment’s Free Exercise Clause. The panel’s majority also rejected the claim that such a prohibition violates the First Amendment’s Establishment Clause. The panel declined to apply a strict scrutiny analysis to the board’s regulation because the prohibition did not constitute viewpoint discrimination.

In Dariano, the Court left undisturbed a September 2014 amended decision by a Ninth Circuit three-judge panel issued after the Ninth Circuit sitting en banc  (all active judges in the circuit participating) denied the students/parents’ petition for a panel rehearing and rehearing en banc, and ordered that no further petitions be permitted. The panel held that school officials had not violated the students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo because such displays might provoke ethnic based violence.

The panel acknowledged that school officials’ decision to restrict the students’ speech gave rise to concerns  about a “heckler’s veto.” However, it found, based on a prior history of racial/ethnic tensions on campus, that officials could reasonably forecast a violent disturbance if they allowed students to display the American flag. As a result, the panel concluded that school officials’ decision was consistent with constitutional requirements under the “substantial disruption” standard espoused in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).


[Editor’s note: In April 2014, Legal Clips summarized the Second Circuit panel’s decision in BHF. In September 2014, Legal Clips summarized the Ninth Circuit panel’s amended opinion in Dariano.]



Recitation of Pledge of Allegiance in Arabic leads to controversy at New York state high school

The Times Herald-Record reports that an effort to promote “Foreign Language Week” at Pine Bush High School (PBHS) became the tinder for a polarizing controversy in the school community when the Pledge of Allegiance was recited in Arabic during the regularly scheduled morning announcements at PBHS. According to students, the recitation was greeted by catcalls and angry denunciations in classrooms throughout the school by students who felt the recitation was inappropriate.

Angry discussion erupted throughout the school and a cascade of tweets were sent by students who criticized the reading, as well as those who supported the reading. The controversy has “divided the school in half,” according to Pine Bush Central School District (PBCSD) Superintendent Joan Carbone. She described the recitation as “something that was supposed to be good but turned out not to be.”

By the afternoon, PBHS Principal Aaron Hopmayer made a building-wide announcement explaining the reading’s context and apologizing to students who took offense. The apology appears to have done little to quell the situation; it may, in fact, have fueled resentment from students who feel the reading was appropriate.

Carbone said she had received complaints from district residents who had lost family members in Afghanistan and from Jewish parents who were equally outraged by the reading. She also said that she learned that state education department regulations specifically state that the Pledge of Allegiance should be read in English. PBCSD is no stranger to controversy. In 2013, Jewish parents sued the district and administrators in federal court, accusing them of being indifferent to chronic anti-Semitic behavior.

Andrew Zink, president of the student assembly and senior class president, ordinarily reads the morning announcements. When he was asked to allow the Arabic recitation to take place, he agreed, but added, “I knew exactly what would happen.” Nevertheless, Zink said that he would do it again “[b]ecause it’s the right thing to do.”

Source: Times Herald-Record, 3/19/15, By Jeremiah Horrigan

[Editor’s Note: In reference to the accusation of anti-Semitic discrimination, in November 2014 Legal Clips summarized an article in The New York Times reporting that a federal district court denied a motion to dismiss a discrimination suit filed against PBCSD. The suit, brought by the families of several Jewish students, claims that the students were victims of pervasive anti-Semitic harassment.

Disputes associated with recitation of the Pledge of Allegiance usually involve lawsuits over inclusion of the phrase “under God” in the Pledge. In February of 2015, Legal Clips summarized a Monmouth County Superior Court’s decision in American Humanist Ass’n v. Matawan-Arberdeen Reg. Sch. Dist. holding that New Jersey’s law requiring the daily recitation of the Pledge of Allegiance in the state’s public schools does not violate the state constitution’s guarantee of religious freedom, even though the Pledge includes the phrase “under God.” In particular, it found that the Pledge law does not violate atheists’ equal protection rights under either Article 1, paragraph 1, or Article 1, paragraph 5, of the New Jersey Constitution.]


Federal district court in Florida rules school officials and police did not violate students’ Fourth Amendment search and seizure rights, Fourteenth Amendment equal protection rights or First Amendment speech rights by subjecting them to breathalyzer tests before allowing them to enter the prom

Ziegler v. Martin Cnty. Sch. Dist., No. 14-14221 (S.D. Fla. Mar. 2, 2015)

Abstract: A federal district court in Florida has ruled that school officials and local law enforcement did not violate students’ Fourth Amendment search rights when sheriff’s deputies searched a bus that the students had used for transportation to the prom. It also concluded that the school district’s breath test policy did not violate students’ Fourth Amendment search rights nor did the conducting of breathalyzer tests violate their Fourth Amendment search rights. In addition, the court held that the detention of the students in order to conduct the breathalyzer tests did not violate the students’ Fourth Amendment seizure rights.

The district court rejected the students’ equal protection claim that the school district’s de facto policy that all students attending prom were subject to a vehicle search and/or breath test was applied in a discriminatory manner to students arriving to the prom in limos or buses. It also held that the school officials did not violate the First Amendment speech rights of two students suspended for using profanity while waiting to be tested. Finally, the court concluded the students’ failure to train claim, with regard to the law enforcement officers, was unsuccessful because the students had failed to show any violation of their constitutional rights.

Facts/Issues:  On May 3, 2014, Jensen Beach High School ( JBHS), which is in the Martin County School District, held its senior prom. Each student who purchased a ticket for the prom was required to sign the Martin County School Board’s zero tolerance form for off campus activities, which states:

Jensen Beach High School, along with Martin County School District, has a ZERO TOLERANCE POLICY for alcohol, drugs, or tobacco. Any form of tobacco, alcoholic beverages, or drugs is not permitted on property owned or controlled by the Martin County School District or at any school-sponsored activity, including activities conducted outside of Martin County. Students and guests attending such activities and events may be subject to a breath test. Any form of profanity is strictly prohibited. School policies are enforced.

Please be advised that failure to uphold these rules will result in immediate disciplinary action and possible recommendation for expulsion.

A group of JBHS students arrived at the school’s prom between 10:15 P.M. and 10:36 P.M. aboard a chartered “party bus.” JBHS Dean of Students Lori Kane informed the approximately 37 students they would not be permitted to enter the prom until the bus was inspected. Martin County Sheriff’s Deputy Norm Brush asked the bus driver for consent to search the bus.

The driver allegedly gave Brush permission to search the bus. During the search, Brush discovered an empty champagne bottle inside of the bus. The driver told Brush that the champagne bottle belonged to the students. Each of the students, including plaintiffs, denied knowledge and/or ownership of the champagne bottle.

The students were informed that they would be required to take and pass a breathalyzer test before entering the Prom. Kane asked JBHS Assistant Principal Iuliucci, who had already left to go home, to return to the prom site because she was the only JBHS official certified to administer breathalyzer tests. Iuliucci arrived approximately 45 minutes later and administered breathalyzer tests. All of the students passed the tests and were permitted to enter the prom. However, by that time the prom, which ended at midnight, was over.

During the wait for the tests, two students, Kendell McCormick and Kaelyn Drazkowski, were heard by school officials using profanity and were later suspended from school for three days.

A number of students on the “party bus” filed suit in federal district court against Martin County School District (MCSD) and the Martin County Sheriff’s Office (MCSO). They alleged: that the search of the bus and the conducting of the breathalyzer tests violated their Fourth Amendment search rights; that detaining the students in order to conduct the tests violated their Fourth Amendment seizure rights; that MCSD’s de facto policy that all students arriving at the prom are subject to a vehicle search and/or breathalyzer was applied in discriminatory manner to students arriving in limos or buses in violation of the students’ Fourteenth Amendment equal protection rights; and,that the Martin County Sheriff’s Office had failed to properly train its police officers. In addition, the two students suspended for using profanity alleged that their First Amendment speech rights were violated.

MCSD and MCSO filed motions for summary judgment.

Ruling/Rationale: The district court granted defendants’ motions for summary judgment. It first addressed the students’ claim against MCSD and MCSO that the search of the bus violated their Fourth Amendment right to be free from unreasonable searches. The court disposed of the factual dispute about whether the students continued to have a reasonable expectation of privacy as to the interior of bus on the ground it was immaterial because “[e]ven assuming Plaintiffs had a legitimate expectation of privacy in the cabin of the bus at the time of the search, the bus driver validly consented to the search.” It found that the fact that the driver was a third party did not affect the validity of the consent because U.S. Supreme Court precedent held that “a third party’s consent is valid if he has mutual use of the property, with joint access to, or control of, the area for most purposes.”

The district court also rejected the students’ argument that the driver’s alleged oral statement and hand gesture are inadmissible hearsay. It stated: “The bus driver’s statement ‘go ahead,’ and gesture waiving Deputy Brush onto the bus, are indications of consent that amount to verbal acts, and as such, are not hearsay.” Because the consent was given voluntarily by the driver, who “maintained joint access and immediate control over the vehicle,” and there were no allegations that the students objected to the driver’s consent, the court concluded that Deputy Brush’s search of the bus passed Fourth Amendment muster.

Turning to the claim alleging that the breath test was unconstitutional, the court rejected the students’ attempt to break the claim down into two separate subsections: (1) the breath test policy is unconstitutional; and (2) even if the policy is constitutional, it was unconstitutional as applied to the students. the court indicated that it was “unable to discern any substantive difference between the two subsections” because “these subsections both attack the breath tests as unconstitutional searches under the Fourth Amendment.”

Because the search took place in the school setting, the district court applied the standard established in New Jersey v. T.L.O., 469 U.S. 325 (1985). Under the T.L.O. standard a search’s reasonableness depends on whether it was justified at its inception, and whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. It asserted that typically a search is justified at its inception if a school official has reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. It also noted that “searches are reasonably related in scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

The district court found that in the instant case, the defendants had reasonable suspicion for believing the students had consumed alcohol in violation of school policy (and probably state law) based on Deputy Brush’s discovery of the champagne bottle on the bus and the driver’s statement that the bottle belonged to the students. As a result, conducting the breathalyzer tests was “reasonably related to the objective of determining whether [the students] were intoxicated prior to entering the Prom because the breathalyzer test specifically tested for the presence of alcohol in Plaintiffs’ bloodstream.” It also found “the breath test was not excessively intrusive in light of [the students’] age and sex because the test merely required [the students] to exhale.”

The district court next took up the issue of whether detaining the students in order to conduct the breathalyzer tests violated the students’ Fourth Amendment right to be free unreasonable seizures. It pointed to the U.S. Court of Appeals for the Eleventh Circuit, which has jurisdiction over federal district courts in Florida, which has held that the reasonableness standard articulated in New Jersey v. TL.O. . . [applies] to school seizures by law enforcement officers.” Because the students were the non-moving party on the motions for summary judgment, the court presumed that they had been seized.

However, just as the court had concluded that the breath tests had satisfied the T.L.O. standard, it also concluded that the defendants had a reasonable suspicion of student alcohol consumption justifying the requirement that each student undergo a breathalyzer test before being admitted to the prom. It pointed out that any delay in conducting the tests due to the wait for the assistant principal to return was attributable to the students who arrived at 10:15 P.M. when the prom tickets expressly stated that doors would close at 10:00 P.M. It also stressed that “the amount of time it took to administer all of the breathalyzer tests to the students was reasonable.” The court stated: “l find that Defendants’ decision to detain Plaintiffs until all of the breath tests were administered was reasonable under the circumstances.”

Turning to the equal protection claim, the district court concluded:

[The students] have failed to articulate a facial challenge to the policy. To the extent [the students’] claim that on the night of the Prom the policy was applied in a discriminatory matter, [the students] fail to provide any evidence to demonstrate that Defendants instituted a policy, formally or informally, that only buses or limos arriving at prom were searched for evidence of alcohol and/or students arriving on buses or limos were given breath tests.”

The district court then took up the First Amendment speech claim. It rejected the two students’ argument that school officials lacked the authority to discipline them for the alleged use of profanity because the speech occurred off-campus. The court stated that in Morse v. Frederick, 551 U .S. 393, 410 (2007), the Supreme Court “made clear that school officials have the authority to regulate student speech at an off-campus, school sponsored event.” It pointed out that because the profanity occurred at a school-sponsored event, i.e., prom, school officials were justified in regulating such speech.

Lastly, the district court concluded the students’ failure to train claim, against the law enforcement officers, was unsuccessful because the students had failed to show any violation of their constitutional rights.

Ziegler v. Martin Cnty. Sch. Dist., No. 14-14221 (S.D. Fla. Mar. 2, 2015)

[In May 2014, Legal Clips summarized an article in TCPalm reporting that a group of students who were barred from entering Jensen Beach High School’s (JBHS) prom until they were tested for alcohol consumption had filed suit in federal court against Martin County School District (MCSD). Because of the length of time the testing took, none of the students made it inside the school to attend the prom.] 

Sua Sponte: NSBA joins with California School Boards Association in filing friend of the court brief urging Ninth Circuit not to allow the automatic awarding of attorney’s fees and costs to prevailing parties in IDEA cases

The National School Boards Association (NSBA) has joined with the California School Boards Association (CSBA) in filing an amicus (friend of the court) brief with the U.S. Court of Appeals for the Ninth Circuit arguing that courts should award attorney’s fees based on equitable considerations and not automatically to parties that achieve no real change in their legal position. The CSBA/NSBA brief makes two main arguments: (1) that the federal district court, in changing its fee analysis, backtracked from the correct legal standard and shifted to an “automatic” fee grant”; and (2) “the district court’s interpretation and application of fee-shifting imposes significant additional costs on school districts already overburdened by the enormous expense of providing special education.”

In urging the Ninth Circuit to reject allowing the “automatic” grant of fees, the brief contends that attorney fee awards are not automatic once a party is determined to be a prevailing party. It also asserts that the district court failed to properly consider the degree of success achieved by the “prevailing party” in determining the size and appropriateness of the award of attorney’s fees and costs. With regard to the financial burden imposed on school districts, the CSBA/NSBA asserts that litigation costs, including attorney fee awards, are a significant additional burden under the IDEA. Their brief also stresses that Congress has yet to appropriate the promised level of funding for special education and related services that school districts must provide under the IDEA.

In NSBA’s press release announcing filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “A school district’s responsibility to pay attorney’s fees under the IDEA should be determined in keeping with existing fairness principles and common sense.” He continued, “School districts’ limited financial resources must be used to advance their educational mission, not fund litigation costs.”

CSBA CEO & Executive Director Vernon M. Billy added, “We are urging the Ninth Circuit to follow established law. School districts should not have to fear paying unwarranted attorneys’ fee awards when making educational decisions about placements and services for children with disabilities.”

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