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California adopts law limiting full-contact football practice time

According to The Washington Post, to make football safer for young players, California Governor Jerry Brown signed into law last week a bill that limits the time youth football teams can spend on tackling.  Under the new law, youth football teams are allowed just three hours of full-contact play per week during the season.  In the off-season, full-contact play is not allowed at all.

The law will also delay an injured player’s return to the field.  Players who are suspected of head injuries cannot play for the rest of that day and must obtain approval from a medical professional before going back into a game.

Democratic Assemblyman Ken Cooley, who drafted the legislation, said it will reduce the risk of lasting brain damage among middle school and high school players.  “Concussion can change a kid’s life,” Cooley, a Sacramento-area lawmaker, told Reuters.  “Viewed through that lens, this bill is not crazy.  It’s good for kids and it’s good for parents.”

States, including Alabama, Maryland and Texas, have all added restrictions on full-contact play in the past year.  Earlier this year, a conference of top health and college sports officials also discussed a national mandate to limit the amount of full-contact practices.

Laws regulating youth football began sweeping the country in 2006, when a 13-year-old player suffered multiple blows to the head and fell into a coma for three months.  Today, Zackery Lystedt still walks with a cane and has limited speaking abilities – but continues to push for stronger regulation.

Every state in the country now has safeguards against youth concussions. Mississippi became the final state to pass a youth concussion law this January.  A few months later, Indiana became the first state to require concussion education for coaches.  The program is funded by a $45 million national grant awarded to the Indianapolis-based youth organization, USA Football.

About 140,000 high school athletes suffered from concussions in 2012, according to data from the National Electronic Injury Surveillance System.

Source:  The Washington Post, 7/23/14, By Sarah Ferris

[Editor’s Note:  In January 2014, Legal Clips summarized an article from al.com, which reported that the parent of a Mississippi high school football player had filed a concussion class action lawsuit against the NCAA and the National Federation of State High School Associations (NFHS). The suit seeks to require the NCAA and NFHS to provide high schools with current concussion-risk information and standard of care practices. It also asks the court to order both associations to certify that high schools have concussion management plans for preventable risks of head injuries.]

The parent of a Mississippi high school football player has filed a concussion class action lawsuit, reports al.com, against the NCAA and the National Federation of State High School Associations (NFHS).  The suit seeks to require the NCAA and NFHS to provide high schools with current concussion-risk information and standard of care practices.  It also asks the court to order both associations to certify that high schools have concussion management plans for preventable risks of head injuries. – See more at: http://legalclips.nsba.org/2014/01/09/high-school-football-players-file-concussion-class-action-suit-against-nfhs-and-ncaa/#sthash.Wed5p9fV.dpuf
The parent of a Mississippi high school football player has filed a concussion class action lawsuit, reports al.com, against the NCAA and the National Federation of State High School Associations (NFHS).  The suit seeks to require the NCAA and NFHS to provide high schools with current concussion-risk information and standard of care practices.  It also asks the court to order both associations to certify that high schools have concussion management plans for preventable risks of head injuries. – See more at: http://legalclips.nsba.org/2014/01/09/high-school-football-players-file-concussion-class-action-suit-against-nfhs-and-ncaa/#sthash.Wed5p9fV.dpuf

Georgia student files Title IX claim for pregnancy discrimination

The Associated Press (AP) reports on wtxl.com that a Georgia high school student has filed a civil rights complaint alleging that she should have been allowed to complete her schoolwork from home while pregnant and on doctor-ordered bed rest.

According to the complaint filed last week with the Atlanta office of the U.S. Department of Education’s Office for Civil Rights, 18-year-old Mikelia Seals was a junior at Washington-Wilkes Comprehensive High School when her doctor ordered bed rest seven months into her pregnancy. The complaint says a guidance counselor told Seals the school did not have a program letting her take classes from home.

Wilkes County Schools Superintendent Rosemary Caddell says she has not seen the complaint yet.

The complaint says Seals later was told that the school had a homebound program for students with medical conditions but pregnancy was not eligible. An attorney for Seals says that violates state rules and federal law, including Title IX.

Source:  wtxl.com, 7/24/14, By AP

[Editor’s Note: The National Women’s Law Center (NWLC) in Washington, D.C., filed the complaint, and accompanying exhibits, on the student’s behalf, alleging the pregnancy discrimination claims in violation of Title IX. Specifically, NWLC alleges that:

“During the Spring semester of 2014, Mikelia experienced pregnancy discrimination when WWCHS: (1) refused to provide her with homebound instruction despite Mikelia’s eligibility due to her medical necessity to be on bed rest for the remainder of her pregnancy; (2) failed to excuse her absences due to her pregnancy and childbirth, including failing to excuse a medically necessary period to recover from an emergency cesarean delivery; and (3) refused to give Mikelia credit for work she completed in Spring 2014 both at school and during her absences.

“Additionally, WWCHS and WCS maintain policies and practices that discriminate against pregnant and parenting students in violation of Title IX.”

In August 2012, Legal Clips summarized an AP story from abcnews.com, which reported that after the American Civil Liberties Union of Louisiana threatened to sue, the Delhi Charter School was changing its policy that kept pregnant students out of the classroom and required them to be home-schooled, and also required girls suspected of being pregnant to be tested.]

Seventh Circuit rejects claim that Illinois teacher had due process right to continued employment under state teacher tenure law

Price v. Board of Educ. of the City of Chicago, No. 13-2007 (7th Cir. July 2, 2014)

Abstract: A U.S. Court of Appeals for the Seventh Circuit three-judge panel has ruled that a tenured teacher, who was part of a massive economic layoff, did not have a procedural due process right in continued employment with the Chicago school system prior to being laid off. The panel concluded that the teacher had failed to identify a cognizable property interest giving rise to a due process claim. It rejected the teacher’s assertion that the Illinois statutory provision granting teachers permanent employee status after a four-year probationary period creates a right for the teacher to fill an open position for which he/she is qualified prior to being laid off. The panel found that the Illinois Supreme Court’s decision in Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 963 N.E.2d 918, 924 (Ill. 2012), foreclosed the teacher’s argument because “tenured teachers do not have a protected property interest in getting rehired or in filling vacant positions for which they are qualified after being laid off.”

Facts/Issues: Williette Price, a tenured teacher with Chicago Public Schools (CPS), who was part of a massive economic layoff in 2010, filed suit in federal court against CPS. Price alleged that CPS had violated her Fourteenth Amendment procedural due process rights because she had a property interest in continued employment as a teacher. Price asserted that CPS had violated the Due Process Clause by depriving her of that property interest. The district court dismissed her suit because Price failed to identify any protected property interest that could give rise to a due process claim. Price appealed.

Ruling/Rationale: The Seventh Circuit panel affirmed the lower court’s decision. The panel found that Price failed to point to any source that gives her the type of property interest she asserts. In analyzing Price’s claim, the panel stated the elements to a procedural due process claim: (1) a cognizable property interest; (2) a deprivation of that property interest; and (3) a denial of due process. It determined that Price’s claim failed because she was unable to identify a source, independent of the Due Process Clause, for the protectable property interest she claimed to have.

Focusing on the first element, i.e., a cognizable property interest, the panel determined that the general property interest asserted was the right to continued employment. However, it found Price was claiming “a more specific right.”  In particular, she was asserting “that by virtue of being tenured, a teacher in CPS has a permanent property interest in filling any existing open or vacant position in CPS for which she was qualified at the time of her layoff even if it was not the position that teacher previously filled.”

Price contended that the source of that right was 105 Ill. Comp. Stat. 5/34-84, the Illinois tenured teacher statute. However, the panel found that Price’s reliance on that statute was misplaced because the Illinois Supreme Court in Chicago Teachers Union, Local No. 1 v. Bd. of Educ., 963 N.E.2d 918, 924 (Ill. 2012) (CTU III), had ruled: “[T]he General Assembly’s removal of layoff and recall procedures from section 34-84 eliminated any substantive rights arising from section 34-84 for tenured teachers to be rehired after an economic layoff.” The panel therefore, concluded that under CTU III, “tenured teachers do not have a protected property interest in getting rehired or in filling vacant positions for which they are qualified after being laid off.”

The panel also rejected Price’s argument that CTU III did not apply because the property interest she was asserting was a pre-layoff right. It found that “the reasoning behind … the Illinois Supreme Court’s [decision] is equally applicable to a pre-layoff right as a post-layoff right.” It likewise rejected the federal case law cited by Price because those cases involved issues related to teachers being “fired”, rather than teachers laid off due to economic conditions.

Finally, the panel found Price’s citation to other cases around the country relating to the rights of “tenured” teachers unavailing. It emphasized that the “interests bestowed upon a tenured teacher are specific to the terms of employment.” The panel stated that a teacher who is tenured or permanent “does not guarantee anything by its very terms; the question is what property interests actually come along with being tenured in that specific situation. Here, the tenure provision does not provide the interest Price seeks or alleges. Her due process claim therefore fails.”

Price v. Board of Educ. of the City of Chicago, No. 13-2007 (7th Cir. July 2, 2014)

[Editor’s Note: In April 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) in CTU v. CBOE, which reversed a federal district court’s ruling granting CTU a preliminary and permanent injunction ordering CBOE to rescind its economic layoff of tenured teachers, and to promulgate layoff and recall rules for tenured teachers. The panel’s decision to reverse and remand with instructions for the district court to vacate the injunction was based on the responses to questions the panel certified to the Illinois Supreme Court, which determined that Illinois law did not give laid-off teachers substantive rights with respect to rehiring and rights to certain procedures during the rehiring process.]

California Attorney General asks court to clarify opinion and issue final decision in Vergara teacher tenure case

The Associated Press (AP) reports in the Daily Reporter that California Attorney General (AG) Kamala Harris has filed a request, without indicating whether the state will file an appeal, asking the Los Angeles County Superior Court to clarify some points in the tentative decision and issue a final opinion in Vergara v. California, the recent teacher tenure case. The AG cites each point the court made regarding the five challenged laws, which dictate when teachers are given tenure, subject to budget-based layoffs, and dismissed for unprofessional conduct, and asks it to provide the factual bases for the findings.

In particular, the AG’s request focuses on how the court concluded that the laws served no valid purpose, had subjected the nine plaintiffs to sub-standard educations, and disproportionately compromised the rights of low-income and minority children. Among the questions raised in the request: 

Did the court determine that being assigned to a single ‘grossly ineffective’ teacher in California, during 13 years of public school education, causes an extreme and unprecedented disparity between that student’s educational experience and the educational experience of other students in California? If so what are the factual bases for that conclusion?

Manny Rivera, a spokesman for Students Matter, the organization that spearheaded the suit, cautioned against reading too much into the AG’s request, saying it provides no indication of whether the state will seek to appeal the court’s final ruling.

Source:  Daily Reporter, 7/23/14, By AP

[Editor’s Note: In June 2014, Legal Clips summarized the court’s tentative decision in Vergara v. California holding that five state statutes providing teacher tenure and other job protections violate the California Constitution’s guarantee of equal protection.

Also in June 2014, Legal Clips summarized an article in the Poughkeepsie Journal reporting that the Partnership for Educational Justice (PEJ), headed by Campbell Brown, plans to mount a legal challenge to New York state’s teacher tenure law and firing practices, calling into question whether those laws run afoul of the state constitution. PEJ charges the state’s teacher-tenure system violates the constitutional right to a “sound, basic education.” The organization also plans to challenge the state’s “last in, first out” policy, which ties teacher layoffs to seniority rather than performance.] 

DOJ files brief supporting ACLU suit on behalf of English language learners against California

EdSource.org reports that the U.S. Department of Justice (DOJ) has filed a “Statement of Interest” brief in support of the suit filed on behalf of English language learner (ELL) students by the American Civil Liberties Union of Southern California (ACLU-SoCal) in Los Angeles County Superior Court. The suit, filed in 2013, claims the state abdicated its obligation to ensure all students classified as ELLs get extra instructional services to become fluent in English. The case is scheduled for trial next week.

DOJ’s brief asserts that the California State Department of Education (CDE) and the State Board of Education (CBE) “have the duty, the data and the tools” to meet their responsibility under federal law. ACLU-SoCal contends the state has done nothing to force school districts to provide appropriate services for the approximately 20,000 ELL students which, according to a 2010-11 survey of school districts, are receiving no services. Those services would include materials in the student’s primary language, parallel instruction for parts of the day taught by bilingual teachers, or a specialized teaching approach called “Specially Designed Academic Instruction In English” used for teaching academic content in science or social studies.

The suit contends that CDE/CBE is violating the federal Equal Educational Opportunities Act (EEOA), which requires the state to meet the language needs of all ELLs, as well as the state constitutional guarantee that all students are equally entitled to an opportunity for an education. The 20,000 ELL students comprise less than 2% of the state’s 1.4 million ELLs, but those numbers are self-reported by districts and likely represent “the tip of the iceberg” of students not getting help, ACLU-SoCal Chief Counsel Mark Rosenbaum said.

California initially responded to the suit claiming that it was providing required services to more than 98% of eligible students, and parents of the remaining students should file complaints with their local districts and not with the state. However, CDE subsequently asked local districts to reexamine the information in the surveys they provided. Of the 40% of districts that responded, some said that some of the students in fact had received specialized services and that other students were taught by teachers who were certified to teach ELLs.

DOJ’s brief argues that the EEOA requires districts to provide services in addition to placing a certified teacher in the classroom. The brief said that the state did nothing further to force districts to provide help and did not follow up with the 60% of districts that did not respond to the request for more information.

CDE’s spokeswoman Pam Slater said the state disagrees with the assertions in the lawsuit and DOJ’s brief. “Once the (Department of Justice) takes the time to fully review the extensive documentation submitted by the (California Department of Education) over the past seven months, it will realize that the State takes seriously its obligation to monitor and ensure the provision of services to all English Learner Students,” she said.

The ACLU-SoCal suit was filed prior to the enactment of the Local Control Funding Formula, which increased existing state funding for low-income and ELL students to about $1,500 per student next year (20% above the base funding per student) plus extra dollars when low-income students and ELLs are heavily concentrated in a district. The new funding formula also shifts financial control from the state to local districts, which are required to complete an extensive three-year Local Control and Accountability Plan (LCAP).

The LCAPs must detail what districts will do to improve services for low-income and ELL students, and how they will spend the extra money those students generate under the new system. Rosenbaum said that the shift from state to local control and the adoption of a new funding system do not relieve the state of its responsibilities under the state constitution.

Source:  EdSource.org, 7/24/14, By John Fensterwald

[Editor’s Note: DOJ’s “Statement of Interest” focuses on CDE/CBE’s and local districts’ responsibilities and duties under the EEOA to service ELL students’ educational needs, and the state’s failure to supervise local districts’ efforts to ensure those needs are being met.

In May 2013, Legal Clips summarized an article in the Los Angeles Times, which discussed the details of ACLU-SoCal’s suit.  In June 2012, Legal Clips summarized an article in the Los Angeles Times, which reported that three regional American Civil Liberties Union offices and the Asian Pacific American Legal Center had filed suit against Dinuba Unified School District (DUSD) and the California Department of Education, alleging that state officials were neglecting their legal obligation to ensure that students who are learning English are receiving an adequate and equal education. The suit, filed in Sacramento County Superior Court, charged that DUSD used a substandard curriculum to improve the lagging performance of students who have yet to master English.] 

DC Circuit holds school administrators were entitled to qualified immunity from former teacher’s First Amendment free speech retaliation suit

Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)

Abstract: A U.S. Court of Appeals for the District of Columbia Circuit three-judge panel has ruled that even assuming the portion of a teacher’s email to the chancellor of the District of Columbia Public Schools (DCPS) accusing his principal of falsifying the assessments of students was protected speech under the First Amendment’s Free Speech Clause, the individual school administrators named as defendants were entitled to qualified immunity from the teacher’s First Amendment retaliation suit. The panel assumed, without deciding, that the part of the email reporting that the principal had allegedly altered the students’ records was protected under the First Amendment.  However, the panel still concluded that the individual defendants were entitled to qualified immunity because it was not clearly established law at the time the teacher was terminated that such speech is protected.

Facts/Issues: Bruno Mpoy was employed by DCPS as a special education teacher at Ludlow Taylor Elementary School (LTES) on a probationary basis. Mpoy encountered a number of obstacles and problems throughout his assignment at LTES. He complained, without success, to Principal Donald Presswood about the unsanitary condition of his classroom and the lack of books and other necessary materials. He also found the performance of his teaching assistants wanting.

Presswood generally ignored Mpoy’s complaints, failed to take any corrective action, and accused Mpoy of creating the problems. According to Mpoy, Presswood instructed him to falsify the assessments of his special education students to make it appear that they had demonstrated acceptable progress. When Mpoy told Presswood that he would not do it, Presswood enlisted two other teachers “to falsify the records of Plaintiff’s special education students.”

Presswood subsequently issued two warning letters to Mpoy: one for excessive tardiness and failure to follow lesson plans; the other for failure to escort and monitor his students and failure to follow safety procedures. Mpoy also received a five-day suspension for failure “to follow instructions issued by your supervisor to conduct a classroom observation.” He then sent an email to then-Chancellor Michelle Rhee. The email described in detail Presswood’s actions and the various classroom problems that Mpoy had brought to Presswood’s attention but that the principal had failed to remedy. The five-page email included a one-sentence reference to Presswood’s alleged direction to falsify the records of Mpoy’s students.

At the end of the school year, Mpoy received a letter of non-renewal of his teaching contract and was terminated. Mpoy filed suit in federal district court against The New Teacher Project, DCPS, Presswood, and Rhee alleging that he was fired for “reporting the misconduct and inappropriate conditions he encountered” at LTES. The court granted The New Teacher Project’s motion to dismiss. It allowed the First Amendment retaliation claim to proceed, but only against Rhee and Presswood, and only in their personal capacities. Mpoy did not appeal that ruling.

After the retaliation claim went forward, Rhee, Presswood, and DCPS filed a motion for judgment on the pleadings, which the district court later granted. The court held that Mpoy’s speech was not protected by the First Amendment because it was made pursuant to his official duties rather than as a citizen on a matter of public concern. In the alternative, the court held that, even if the speech was protected, Presswood and Rhee were entitled to qualified immunity. Mpoy appealed this ruling.

Ruling/Rationale: The D.C. Circuit panel affirmed the lower court’s decision on the grounds of qualified immunity. Analyzing the issue of whether Mpoy had engaged in protected speech, the panel stated that under Garcetti v. Ceballos, 547 U.S. 410 (2006), courts utilize a two-part test:

The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.

The panel found that the focus of the appeal was whether Mpoy spoke as a citizen rather than an employee in his email. Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

According to the panel, the D.C. Circuit has interpreted “pursuant … to officials duties” in Winder v. Erste, 566 F.3d 209 (D.C. Cir. 2009), to mean that “a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.” It, therefore, found: “Under circuit law as described in Winder, however, that email is unprotected by the First Amendment because it ‘report[ed] conduct that interfere[d] with his job responsibilities.’” As a result, the panel concluded, based on Winder, that “Mpoy’s email constituted employee speech unprotected by the First Amendment.”

Nonetheless, the panel determined that its inquiry into whether email was entitled to First Amendment protection was not at an end, because the U.S. Supreme Court’s repeated use in Lane v. Franks, __ U.S. __, No. 13-483, 2014 WL 2765285 (June 19, 2014), of  “the adjective ‘ordinary’ — which the court repeated nine times — could signal a narrowing of the realm of employee speech left unprotected by Garcetti.” The panel posited that “it is possible that Winder’s broad language, interpreting Garcetti as leaving an employee unprotected when he reports conduct that ‘interferes with his job responsibilities,’ could be in tension with Lane’s holding that an employee’s speech is unprotected only when it is within the scope of the employee’s ‘ordinary job responsibilities.’”

However, the panel found it could leave that question for another day because Mpoy’s appeal could be resolved by determining if Presswood and Rhee were entitled to qualified immunity.  Pointing out that the “relevant question for qualified immunity purposes is whether the official could reasonably have believed, at the time he fired [the plaintiff], that a government employer could fire an employee on account of the speech in question.” It concluded that because no Supreme Court case at the time had “cast doubt” on the validity of Winder as precedent, the individual defendants were entitled to qualified immunity.

Mpoy v. Rhee, No. 12-7129 (D.C. Cir. July 15, 2014)

[Editor’s Note: In June 2014, Legal Clips summarized a decision by a New York federal district court in Pekowsky v. Yonkers Bd. of Educ. denying a school district’s and middle school principal’s motions for summary judgment seeking dismissal of a teacher’s First Amendment retaliation claim. The court concluded that the teacher, who served as union representative for teachers at a middle school, had pleaded facts sufficient to state a cause of action for retaliation. It rejected the defendants’ contention that the teacher’s advocacy on behalf of fellow union members was not activity protected by the First Amendment.

Also in June 2014, Legal Clips summarized an NPR story reporting on the U.S. Supreme Court’s decision in Lane v. Franks, which held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.” However, the Court also found that Franks was entitled to qualified immunity from the suit.]

Fifth Circuit panel upholds University of Texas race-conscious admissions policy

Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)

Abstract: In a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled that the undergraduate admissions policy of the University of Texas at Austin (UT) does not violate the Fourteenth Amendment’s Equal Protection Clause. The Fifth Circuit panel majority, following the U.S. Supreme Court’s instructions, subjected UT’s admissions policy to a rigorous “strict scrutiny” analysis. It concluded that to “deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It found that UT’s “holistic review”, in which race is considered as one of a number of factors, “is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.”

Facts/Issues:  Abigail Fisher, a white applicant, was denied admission to UT in 2008 under UT’s “holistic review” program.  Although race is not assigned a numerical value under UT’s holistic review program, UT is committed to increasing minority enrollment – a goal which it terms “critical mass.”

UT’s holistic review program was adopted after the Fifth Circuit invalidated a system based on a numerical score involving academic performance and race in Hopwood v. Texas, 78 F.3d 932 (1996).  After Hopwood, state lawmakers adopted the Top Ten Percent Law, which grants automatic admission to students in the top 10% of their high school class.  Together, these programs produced a more racially diverse student body at UT than had existed pre-Hopwood.

But after the Supreme Court’s Grutter decision upheld the use of race in holistic admissions plans, UT restored a racial component to its program. Race was added as a factor to UT’s “personal achievement index,” a mix of leadership qualities, extracurricular activities, work and service experience, and special circumstances.

That index, known as the PAI, and a separate academic index are used on a matrix to grant admission to applicants who do not get in through the Top Ten Percent law. Fisher sued UT and school officials in federal district court, alleging that UT’s consideration of race in admissions violated the Fourteenth Amendment’s Equal Protection Clause.  The district court granted summary judgment to UT.

Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to UT, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, Fifth Circuit upheld UT’s admissions plan.  Fisher appealed.

In a 7-1 decision, the U.S. Supreme Court vacated the Fifth Circuit’s decision upholding the constitutionality of UT’s admission policy, because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and . . . Bakke . . . .” It remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion.  Justice Kennedy wrote the majority opinion.

The majority noted that the line of cases upholding the use of race in university admissions, when it is narrowly tailored to the compelling government interest in the educational benefits that flow from a diverse student body, had not been challenged.  This “strict scrutiny” analysis requires a court to conduct an exacting analysis, which the Supreme Court found the Fifth Circuit had not done.  The Court directed the Fifth Circuit to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Ruling Rationale: On remand, the Fifth Circuit panel’s majority affirmed the district court’s grant of summary judgment to UT, rejecting Fisher’s claim that UT’s race-conscious admissions policy violated the Fourteenth Amendment. The majority, in accordance with the Supreme Court’s instructions, applied “more exacting scrutiny” to UT’s admissions efforts to achieve diversity.

Before addressing the issue of whether UT’s race consciousness admissions policy survived strict scrutiny, the majority disposed of UT’s contention that the Supreme Court’s decision required the Fifth Circuit to return the case to the district court for additional discovery based on the Supreme Court’s holding regarding scrutiny and deference. Given that there were no new issues of fact or need for additional discovery, it concluded that remand to the district court would result in a “duplication of effort.” The panel majority, therefore, denied UT’s motion for remand.

Commencing its strict scrutiny analysis, the panel majority repeated the Supreme Court’s warning that “[s]trict scrutiny must not be strict in theory, but fatal in fact, yet it must also not be strict in theory but feeble in fact.” It concluded, based on the data in the record, that the “holistic review” of “what little remains after over 80% of the class is admitted on class rank alone — does not, as claimed, function as an open gate to boost minority headcount for a racial quota.” Instead, the majority found: “Minorities being under-represented in holistic review admission relative to the impact of holistic review on the class as a whole holds true almost without exception for both blacks and Hispanics for every year from 1996 – 2008, ….”

In response to the plaintiff’s assertion that UT failed to seek race neutral alternatives in seeking the goal of diversity, the majority stated that “this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program — in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.” It found that the “holistic review” component of the admissions policy complements the “top Ten Percent” component’s contribution to the goal of diversity “by mitigating in an important way the effects of the single dimension process”, and “its limited use of race is narrowly tailored to this role ….”

The panel majority rejected Fisher’s argument that a race-conscious admissions policy was no longer necessary because UT had reached admission of a “critical mass” of minority students at the time she applied. Instead, it concluded that UT “demonstrated a permissible goal of achieving the educational benefits of diversity within that university’s distinct mission, not seeking a percentage of minority students that reaches some arbitrary size.” It stressed that Fisher’s argument failed to take into account that over 80% of UT’s students are admitted “without facial consideration of race as any part of narrow tailoring, and critically refuses to accept that the process adopted for the remaining 20% is essential.” The majority pointed out that the argument rested on the “untenable premise that a Grutter plan for 100% of the admissions is to be preferred.”

The panel majority rejected Fisher’s insistence that while the “holistic review” component “may be a necessary and ameliorating complement to the Top Ten Percent Plan,” UT has failed to show that the use of race as a factor is needed because “the Plan produces sufficient numbers of minorities for critical mass.”  The panel majority responded:

To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school — not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances — one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.

Dissent: The dissenting judge believed that the race-conscious “holistic review” component of the admissions policy was not narrowly tailored to achieve the goal of diversity. The judge argued that in the Supreme Court’s decision vacating the Fifth Circuit panel’s previous ruling, the Supreme Court had ordered the Fifth Circuit not to give any deference to UT’s claims that its use of race is narrowly tailored. He stated: “This deference is squarely at odds with the central lesson of Fisher.” He added, “A proper strict scrutiny analysis, affording the University ‘no deference’ on its narrow tailoring claims, compels the conclusion that the University’s race-conscious admissions process does not survive strict scrutiny.”

The dissenting judge agreed with Fisher that UT was required to seek other race-neutral options to achieve diversity, because as Justice Kennedy stated in his concurrence in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), the use of racial classifications is permissible only as a “last resort to achieve a compelling interest.” According to the judge, the panel majority entirely overlooks UT’s failure to define its “critical mass” objective for the purposes of assessing narrow tailoring. “This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”

The dissenting judge, therefore, concluded: “The exacting scrutiny required by the Supreme Court’s ‘broader equal protection jurisprudence’ is entirely absent from today’s opinion, which holds that the University has proven narrow tailoring even though it has failed to meaningfully articulate its diversity goals.” While conceding that the majority was correct that a “race-conscious admissions plan need not have a ‘dramatic or lopsided impact’ on minority enrollment numbers to survive strict scrutiny,” he stressed that UT could only “prove the necessity of its racial classification” by providing a meaningful explanation of “how a small, marginal increase in minority admissions is necessary to achieving its diversity goals.”

The dissenting judge found none of UT’s strict scrutiny arguments sufficient that the policy is narrowly tailored, because those arguments either overlook “a more narrowly tailored alternative” or fail to articulate how “this specific use of racial classification advances the University’s objective.” He said, “Because the role played by race in the admissions decision is essentially unknowable, I cannot find that these racial classifications are necessary or narrowly tailored to achieving the University’s interest in diversity.”

Like the majority, the dissent found the “review process captures the essence of the holistic diversity interest established in Bakke, validated in Grutter, and left intact by Fisher.” However, he found two flaws in UT’s claim that its own, internal, periodic review is sufficient to safeguard against any unconstitutional use of race:

First, strict scrutiny does not allow the judiciary to delegate wholesale to state actors the task of determining whether a race-conscious admissions policy continues to be necessary. Second, while the University correctly considers a range of factors in its assessment of the necessity of its use of race, it has still not explained to us how this consideration takes place.

Finally, the judge rejected UT’s assertion that its “holistic review” component was modeled on the admissions policy found constitutional in Grutter. He said, “Similarity to Grutter is not a narrow-tailoring talisman that insulates the University’s policy from strict scrutiny. The University’s burden is to prove that its own use of racial classifications is necessary and narrowly tailored for achieving its own diversity objectives.”

The dissent concluded that UT’s “holistic review” failed because UT was unable to articulate the connection between its diversity goal of “critical mass” and its race-conscious admissions process. He said, “The University’s failure to meet its strict scrutiny burden is a function of its undefined ends, not its choice to label those ends as ‘critical mass.’”

Fisher v. University of Texas at Austin, No. 09-50822 (5th Cir. July 15, 2014)

[Editor’s Note: In June 2013, Legal Clips summarized the U.S. Supreme Court’s 7-1 decision in Fisher, which vacated the Fifth Circuit’s decision upholding the constitutionality of UT’s admissions policy, and remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion. 

In November 2013, Legal Clips summarized an article in the Texas Tribune discussing the oral argument before the Fifth Circuit panel. Judge Emilio Garza, who wrote the dissenting opinion in the latest decision, presaged his criticism of the panel majority’s decision saying that “the definition of ‘critical mass’ that he heard during arguments was ‘tautological, circular or subjective.’”  Judge Garza observed that the application of strict scrutiny creates an interesting problem since, under the law, the goals for diversity cannot be defined by a specific number.]

New York teacher sues claiming harassment and discrimination based on sexual orientation

According to silive.com, a New York City speech therapy teacher has filed suit alleging he was subjected by supervisors to a hostile work environment in which he was mocked and insulted for his sexuality, and was then retaliated against when he filed a complaint. Jeffrey Giove, who is openly gay, is suing the city of New York, the city Department of Education, and his former supervisors at the Marsh Avenue Expeditionary Learning School — former principal Jessica Jenkins-Milona, current principal Cara DeAngelo and speech supervisor Judith Labarbera — for alleged harassment and discrimination on the basis of his sexual orientation.

The suit alleges that beginning in January 2009, a parent coordinator at the school, Suzanne Rolnick, began calling the plaintiff a “fat [gay slur],” and “joked about plaintiff’s sexual orientation openly and loudly in front of others.”  Rolnick, who is not named as one of the defendants in the suit, made these comments in front of students, teachers, and school administrators approximately once every two weeks, according to Giove’s suit. Her insults allegedly increased to approximately twice a week.

The harassment took place in front of Jenkins-Milona, and at times she laughed at it, the lawsuit claims. Giove finally complained to higher-ups around January 2013 when he addressed the issue with Jenkins-Milona. However, the remarks continued, the suit says. Jenkins-Milona was promoted from principal to superintendent of Staten Island public elementary and intermediate schools in September 2013. DeAngelo then became principal of Giove’s school. The suit claims that DeAngelo repeatedly witnessed Rolnick using the gay slur to address Giove, but did nothing about it.

In December 2013, Giove filed a complaint with the NYC Department of Education’s Office of Equal Opportunity regarding sexual orientation discrimination, and told Labarbera, his direct supervisor at the time. Shortly thereafter, Giove alleges that the defendants began retaliating against him for making the complaint, though he had a relatively clean professional record until then. “After plaintiff made this complaint …, he was subjected to approximately 10 disciplinary conferences with defendants DeAngelo and Labarbera and was formally written up approximately four times, all within the next four months,” the suit claims.

The suit also claims that after Giove declined an offered transfer, Labarbera told Giove in March 2014 that students would start being moved off his caseload, and she began observing his class for a short period of time.  Labarbera had never formally observed Giove teaching, according to the suit. In May 2014, Labarbera pulled him out of his classroom, gave him an “unsatisfactory” evaluation, and had him removed from the building, the suit said.  Giove claims he suffered severe anxiety and depression as a result of the harassment, and it interfered with his ability to perform his job.

Source:  silive.com, 7/18/14, By Mira Wassef

[Editor’s Note: In March 2012, Legal Clips summarized an article in the San Gabriel Valley Tribune, which reported that Mitch Stein, former coach of Charter Oak High School’s water polo team, filed suit against Charter Oak Unified School District charging that district officials terminated him because he is gay. Stein’s suit in Los Angeles Superior Court was seeking his reinstatement as a water polo coach and unspecified damages for lost wages, pain and suffering, and emotional distress.]

Florida district revises non-curricular student club policy after settling suit with religious student club

The Lake County School Board (LCSB) has voted to discontinue its practice of providing stipends to non-curricular high school student clubs on a district-wide basis, says the Daily Commercial. The board also voted to change the High School Student Clubs and Organizations Policy to grant non-curricular clubs the same access to school facilities as other student clubs.

LCSB’s action was prompted by a settlement in a suit brought by the Liberty Counsel on behalf of the Fellowship of Christian Athletes (FCA) at Mount Dora High School. The suit charged that the FCA had been refused access to school facilities granted to other student clubs, was not permitted to post announcements in the hallways and on the school’s marquee, and could not make announcements over the school’s public address system, club web page, or on the district’s website.

FCA students also wanted to wear a colored cord at graduation to signify club membership, have a club section in the school yearbook, and receive a stipend for the club’s faculty advisor. The settlement gave the FCA the same access to school facilities as other non-curricular student clubs. “We are trying to reach a point as conservative as possible to eliminate the ability to be sued over one of these topics,” said LCSB’s attorney, Steve Johnson.

The board’s revised policy now provides all clubs “the ability to place club announcements in the hallways and on the school’s marquee; to place flyers and posters in and outside of classrooms where clubs meet; the ability to present announcements over the school’s public address system; to maintain a club web page on the district’s website; the ability to wear colored cords at graduation to signify club membership; and free inclusion of the club in the year book.”

According to Johnson, the only issue pending is the stipend issue. He asked the board to decide whether all clubs should get a stipend to pay for faculty advisors. Superintendent Susan Moxley expressed concern with that idea. “If it is open across the board from a district standpoint, we have no way of managing supplements,” she said. “You could go from a number of clubs you budget to an infinite number of clubs.”

Source:  Daily Commercial, 7/22/14, By Livi Stanford

[Editor’s Note: In April 2014, Legal Clips summarized a story from News 13 reporting on FCA’s suit. The suit charged that FCA was being discriminated against by being excluded from announcements, the yearbook, and virtually every other school publication or website.]

Group of Louisiana legislators sue to block rollout of Common Core

The New Orleans Advocate reports that 17 members of the Louisiana state legislature have filed suit against State Board of Elementary and Secondary Education (LBESE) and Department of Education (LDE) seeking to halt implementation of the Common Core academic standards. Their suit charges that LBESE and LDE failed to follow the state’s Administrative Procedures Act (LAPA), which was a required step that would have allowed crucial public input.

State Superintendent of Education John White and Chas Roemer, President of LBESE, respond that the suit is misguided because education officials were not required to do what the legislators are claiming. “There is no legal basis for their claim whatsoever,” White said.

The suit, which was filed in the Louisiana 19th Judicial District Court, claims the issue is urgent because public schools start in a few weeks, and seeks a temporary injunction to block the rollout of Common Core.  At the same time, Gov. Bobby Jindal is mired in a dispute with LBESE and LDE over whether to scrap Common Core and the exams that go with it.

The suit focuses on the details of how LBESE adopted the standards in 2010. The legislators contend that the action violated the LAPA. White counters that state law requires LDE to establish content standards and for LBESE to approve them. LDE contends the law “says nothing about regulations or a required Administrative Procedures Act.”

Source:  The New Orleans Advocate, 7/22/14, By Will Sentell

[Editor’s Note: In July 2014, Legal Clips summarized an article in The Oklahoman, which reported that within hours of hearing oral arguments in the suit challenging the Oklahoma legislature’s bill repealing the Common Core academic standards, the state’s highest court ruled that the repeal legislation passes muster under the state constitution. The Oklahoma Supreme Court rejected the plaintiffs’ argument that the state legislature had exceeded its authority by giving itself the power to draft new replacement benchmarks for the state’s students.]

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