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California enacts mandatory vaccination law that eliminates all exemptions except for medical ones

The San Jose Mercury News reports that Gov. Jerry Brown has signed into law  Senate Bill 277 (SB 277), which requires almost all California schoolchildren to be fully vaccinated in order to attend public or private school. The law only allows for medical exemptions to vaccinations and students would have to be vaccinated without regard to their parents’ personal or religious beliefs. Only two other states, Mississippi and West Virginia, have vaccination laws that only permit medical exemptions to mandatory immunizations.  “The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases,” Brown said. “While it’s true that no medical intervention is without risk, the evidence shows that immunization powerfully benefits and protects the community.”

Opponents of the law say the legislation violates their parental rights and immediately vowed both to sue the state and take their case to California voters. Under the law, vaccinations would be required of children first entering public school, or when they enter seventh grade, after July 1, 2016. The clamor around the elimination of the “personal belief exemption” heated up in California after a measles outbreak started in December 2014 at Disneyland.

The law has received widespread support from health and education organizations across the state, including the California Medical Association; the American Academy of Pediatrics, California; California State PTA; California Immunization Coalition; and the California Children’s Hospital Association. Two-thirds of Californians believe children should not be allowed to attend public school unless they are vaccinated, according to a recent Public Policy Institute of California poll.

Nevertheless, opponents say the law will be a hardship on many parents whose unvaccinated kids now can only attend private home schools or learn through independent off-campus studies. They also claim some vaccines harm some children, and parents should have the right to protect their children.

Under the law, a physician has broad authority to grant a medical exemption, not only to children who have had severe reactions to vaccines in the past, but also if a family member had a bad reaction to a vaccine.

San Jose Mercury News, 6/30/15, By Tracy Seipel and Jessica Calefati

[Editor’s Note: In January 2015, Legal Clips summarized a decision by a U.S. Court of Appeals for the Second Circuit three-judge panel in Phillips v. City of New York, in a per curiam (unauthored) opinion, holding that a New York State law requiring that all children be vaccinated in order to attend public school is constitutional. It also concluded that a state regulation permitting state officials to temporarily exclude students, who are exempted from the vaccination requirement, from school during an outbreak of a vaccine‐preventable disease is constitutional. The panel upheld the lower court’s decision that both the law and regulation passed federal constitutional muster.]

DOJ joins transgender student’s suit against Virginia district, asserting district’s restroom policy violates Title IX

The Daily Press reports that the U.S. Department of Justice (DOJ) has filed a statement of interest in support of transgender student Gavin Grimm’s lawsuit against the Gloucester County School Board (GCSB), which asserts that the board’s restroom policy violates Title IX because it discriminates on the basis of sex, which the department states includes gender identity and transgender status. The American Civil Liberties Union of Virginia (ACLU-VA) brought suit on Grimm’s behalf in federal court, alleging that the policy, which restricts students to either single-stall restrooms or the restrooms designated for their biological gender, discriminates against Grimm on the bases of his gender identity and transgender status.

DOJ’s statement of interest states “there is a strong public interest in requiring the District to treat [Grimm], a transgender male student, like all other male students, including allowing him to use the male restrooms at Gloucester High School.” It also points out that even though Grimm “was assigned the female sex at birth … his gender identity is male and he presents as a boy in all aspects of his life.”

According to ACLU-VA senior staff attorney Joshua Block, “The Department of Justice filing makes it crystal clear that the Gloucester County School Board’s transgender restroom policy violates Title IX. All students — including transgender students — should be able to use the restroom without being stigmatized and humiliated for being who they are.” In December 2014, ACLU-VA  filed an administrative complaint with DOJ and the U.S. Department of Education. In response, DOJ earlier this year, asked Gloucester County school district to reconsider its policy decision.

In April 2015, the school district responded, standing firm on its policy, which included the implementation of extra privacy measures in the school district’s restrooms and making the single-stall restrooms available to the entire student body, not just Grimm.

Rebecca Glenberg, legal director of the ACLU-VA, said the school division has 21 days to respond to the lawsuit, which was served on the district on June 18. However,  ACLU-VA filed for an injunction on behalf of Grimm that would require the district to allow Grimm to use the boys restroom when school starts in the fall.

Source: Daily Press, 6/30/15, By Frances Hubbard

[Editor’s Note: DOJ ‘s “Statement of Interest” makes two main arguments supporting the Title IX claim: (1) Discrimination Based on Gender Identity, Including Transgender Status, is Discrimination Based on Sex; and (2) Discrimination Based on a Transgender Individual’s Nonconformity to Sex Stereotypes is Discrimination Based on Sex.

In June 2015, Legal Clips summarized an article in The Washington Post reporting that the American Civil Liberties Union (ACLU) has filed suit in federal district court against Gloucester County School Board (GCSB) on behalf Gavin Grimm, a transgender student at Gloucester High School, alleging that the board’s restroom policy is discriminatory. The suit contends that the policy discriminates against transgender students, such as Gavin, by forcing them to use “alternative” restrooms, not the communal facilities available to their peers.] 

New York state district settles suit over anti-Semitic bullying in its schools

The New York Times reports that Pine Bush Central School District (PBCSD) has agreed to pay $4.48 million to settle a suit by five current and former Jewish students who claimed that they had been victims of pervasive anti-Semitism in the schools. In addition to the monetary settlement, PBCSD has agreed to enact broad reforms in curriculum and training. The settlement agreement awaits approval by federal district court Judge Kenneth M. Karas.

The suit accused PBCSD officials of failing for years to take action to protect the Jewish students from anti-Semitic bullying, slurs and other intimidation. “Anti­-Semitic harassment is wrong,” the school district and the plaintiffs said in a joint statement posted on the Pine Bush website. “The district will never condone anti­-Semitic slurs or graffiti, Holocaust ‘jokes’ or physical violence. No family should have to experience the hurt and pain that bullying and name ­calling can cause children to endure because of their religious, national or cultural identity.” Judge Karas will retain jurisdiction over the matter for three years to enforce the terms of the agreement, according to the settlement document.

The suit alleged that “deliberate indifference” by school officials had allowed the anti­-Semitic harassment to persist across grade levels in three of the district’s schools. PBCSD officials had vigorously fought the suit, arguing that they had responded properly by holding anti­-bullying assemblies and imposing discipline when it was appropriate.

It was not clear how PBCSD, which has a $109 million budget, according to its website, would cover the cost of the settlement. In May, PBCSD’s attorneys claimed that the district’s insurance carrier had “denied coverage for this case.”

The settlement calls for mandatory training for teachers and staff members on how to recognize and report anti-­Semitic graffiti, name­ calling, insults and other such harassment; the district must also maintain a broad diversity and anti-­bullying curriculum, developed with the Anti­-Defamation League; the school district must revise its policies against discrimination and bullying to ensure that they cover and prohibit anti­-Semitic harassment, and  episodes of harassment must be “promptly and thoroughly” investigated.

The settlement agreement also requires PBCSD to institute “meaningful, consistent, minimum consequences” for anti­-Semitic harassment and increase its severity for repeated instances. The district must also promptly photograph and remove any anti­-Semitic graffiti that appears on school property. In addition, the settlement requires PBCSD to seek assistance for three years from the United States Department of Education Office for Civil Rights in revising policies, training and curriculum that are part of the agreement.

The lawsuit cited a 2011 email from Philip G. Steinberg, the superintendent at the time, responding to a parent’s complaint about harassment of her daughter and another Jewish student. “I have said I will meet with your daughters and I will,” Mr. Steinberg wrote, “but your expectations for changing inbred prejudice may be a bit unrealistic.” Mr. Steinberg, who has retired from the district, said  at the time the suit was filed that it was a “money grab” and that some of the plaintiff’s claims were “embellished.”

Adele P. Kimmel, a lawyer with Public Justice, which served as co-­counsel for the plaintiffs, said the reforms in the Pine Bush settlement “are a blueprint for what school districts across the country should do to prevent and address bullying in their schools.”

Source: The New York Times, 6/29/15, By Benjamin Weiser

[Editor’s Note: In November 2014, Legal Clips summarized an article in The New York Times reporting that Judge Karas had denied a motion to dismiss the discrimination suit filed against PBCSD. In the editor’s note of the summary, Legal Clips referred to a previous New York Times article reporting that the United States Attorney’s office  for the Southern District of New York had intervened in the families’ suit against PBCSD. The USA’s memorandum stated that the evidence “is sufficient for a jury to find that [PBCSD]  failed to respond to pervasive anti-Semitic harassment in its schools.”]


Pennsylvania school district’s attorney opposes DOJ’s continued oversight of district’s anti-sexual harassment efforts through 2017

 The Morning Call reports that Allentown School District’s (ASD) attorney, John Freund, opposes the U.S. Department of Justice’s (DOJ) continued supervision of ASD’s anti-sexual harassment efforts through 2017 on the ground that ASD has made great strides in improving its handling of sexual harassment cases, despite DOJ’s report to the contrary. During a recent school board meeting Freund, made a statement about a previous Morning Call story that reported that DOJ’s review had found sexual harassment is still an issue in the school district and that ASD had failed to comply with a 2012 consent decree the district accepted as part of a settlement in a lawsuit over the sexual abuse of five Central Elementary School students by an older boy in 2003 and 2004.

Freund insists ASD will oppose DOJ supervision through 2017. “The district has worked diligently,” he said. “The DOJ’s motions and citing reasons for wanting to add two years was grossly overstated and calculated for effect. Complaints about deadlines missed completely ignored the substantial time, effort and progress made by staff.” According to Freund, ASD efforts include adding cameras in buildings to identify vulnerable areas, improving investigation techniques, enhancing record keeping and improving communication to parents and students.

Under the agreement, ASD was required to improve its compliance with Title IX, the federal law against sexual discrimination in schools. The decree required the district to revise its sexual harassment policy and procedures for investigating sex-based incidents in its schools, provide better training for staff members and report data on sexual harassment and assault to the community.

DOJ attorneys said the district missed deadlines to revise policies, failed to adequately train teachers and staff and failed to investigate allegations of staff-on-student harassment under the same standards as student-on-student harassment. Its report listed four allegations of staff-on-student harassment, including one when a student said a security guard called her a “sexy young chocolate lady.” The Department of Justice said that security officer was transferred to a different school, where he was accused of propositioning another student.

Freund said each of those incidents was addressed and investigated. He contends that DOJ was demanding reopening cases that were long closed. According to Freund, DOJ originally wanted the district under supervision for five years, but ASD negotiated it to three years. While the improvements made have been beneficial, addressing DOJ’s demands has been time consuming and expensive, Freund said. Freund called the Morning Call story “one-sided.”

ASD Superintendent Russ Mayo recommended  that the school board hire an equity coordinator with a salary of around $65,000 to handle cases such as sexual harassment, bullying or gender discrimination. He said DOJ suggested the district hire for that position years ago, but the district was not in a financial position to do so. This is not a recommendation from DOJ, but Mayo said he thinks it will solve some issues. The school board unanimously approved hiring an equity coordinator.

In the last two months, additional claims that students have sexually assaulted students in other schools have surfaced.

Source: The Morning Call, 6/25/15, By Jacqueline Palochko

[Editor’s Note: In August 2012, Legal Clips summarized a DOJ press release announcing that DOJ and ASD had filed a proposed joint consent decree in a Pennsylvania federal district court, containing provisions designed to address and prevent student-on-student sexual assault. As stated in the proposed consent decree, during the 2003-04 school year, a number of first- and second-grade male students at ASD’s Central Elementary School were sexually harassed by a 12-year-old fifth grade student in the boys’ restroom at school.]



U.S. Supreme Court to review suit challenging the constitutionality of teachers unions imposing mandatory representation fees on non-member teachers

The Los Angeles Times reports that the U.S. Supreme Court is poised to weigh in on a legal dispute, in Friedrichs vs. California Teachers Ass’n, between a teachers union and a group of teachers who opted out of joining the union. The dispute, which is over mandatory representation fees, could overturn an almost forty year old Supreme Court precedent. If that precedent is overruled by the nation’s highest court, it could be the death knell for public unions. “This is a very significant case. It may well be life or death for the unions,” said Harvard Law School professor Benjamin Sachs. “Unions are required to represent everyone. And this could mean nobody has an obligation to pay.”

A ruling against the mandatory fees would have a major effect on California’s public employee unions, which are among the most powerful in the country and represent hundreds of thousands of workers. At issue is the court’s 1977 precedent in Abood vs. Detroit Board of Education, which today allows government worker unions in California and 20 other states to collect “fair share” fees to cover the costs of collective bargaining, even from employees who do not join or support the union.

Although the Supreme Court has previously ruled that workers cannot be required to pay for a union’s political activities, it has concluded that they should contribute something toward a union’s cost of negotiating better wages and benefits for everyone. Justice Alito has long questioned whether these forced fees in the public sector violate free speech because they require employees to support a union they may oppose. He has also suggested that the line between a public-sector union’s collective bargaining and its political activities is blurred because negotiations to increase the size and cost of government payrolls, for example, could also be considered a political issue.

In 2014, the Supreme Court took up a case involving union fees paid by home healthcare aides. In a 5-4 decision, the majority ruled that Illinois may not force those state-funded workers to pay union fees. Alito, who authored the majority opinion, found that although state employees have free-speech rights, the healthcare workers in question actually worked for the patients, not the state. That skirted the broader issue of whether all mandatory fees were constitutional, but opened the door for Friedrichs to challenge the forced fees on free-speech grounds. In that opinion, Alito concluded, “Except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Although Alito can probably count on most of the conservative wing of the Court to vote with him against the forced fees, Justice Scalia may prove to be the toughest vote because he has written in support of the Abood ruling. Scalia wrote in 1991 that because public-sector unions had a legal duty to represent all employees who had grievances or other problems, it was reasonable to require all workers to pay their fair share of the cost.

Public sector unions have been under attack in recent years in states that had traditionally been strong union states, such as Illinois, Michigan and Wisconsin. About half of the states, including all of the South, have so-called right-to-work laws forbidding collective bargaining and union agreements that require all employees to support the union.

The legal dispute in Friedrichs began when Rebecca Friedrichs, and several other public teachers from Orange County, objected to supporting the California Teachers Ass’n. Full dues for California teachers who join the union are about $1,000 a year, but even nonmembers like Friedrichs have to pay about $650 on average for their share of the cost of collective bargaining, her lawsuit says.

The Center for Individual Rights appealed her case to the high court and is asking justices to overturn the Abood decision. The appeal was filed by Michael Carvin, the same Washington lawyer who argued this year’s unsuccessful challenge of President Obama’s healthcare program. He called upon the court to strike down the “multi-hundred-million-dollar regime of compelled speech” that benefits unions. “This case is about the right of individuals to decide for themselves whether to join and pay dues to an organization that purports to speak on their behalf,” said Terry Pell, the center’s president. “We are seeking the end of compulsory union dues across the nation on the basis of the free-speech rights guaranteed by the 1st Amendment.”

Frank Wells, a spokesman for the California teachers union, said only a small percentage of teachers chose to pay the lower nonmember fees rather than full dues. The union has 325,000 members and an additional 31,000 fee payers, he said. Leaders of the nation’s largest unions of teachers and public employees reacted with anger and alarm to the Supreme Court’s move. “The court is revisiting decisions that have made it possible for people to stick together for a voice at work and in their communities,” reads a statement by the heads of the National Education Assn.; American Federation of Teachers; California Teachers Assn.; American Federation of State, County and Municipal Employees; and Service Employees International Union. Together, they represent 4.6 million teachers and 3.6 million other public employees.

The dispute does not affect private-sector unions because only the government is required to abide by the 1st Amendment.

Source: Los Angeles Times, 6/30/15, By David G. Savage  

[Editor’s Note: Friedrichs v. Cal. Teachers Ass’n, No. 14-915, involves two issues: (1) Should Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) Does it violate the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

In May 2013, Legal Clips summarized an article in the Los Angeles Times  reporting that a group of California teachers had filed a complaint in a federal court in Santa Ana claiming that the “agency-shop” law allowing for the collection of union fees must be overturned because it violates their rights of free speech and association. The Norwalk-La Miranda Unified, Santa Ana Unified, Saddleback Valley Unified, and Chino Valley Unified school districts, the superintendents in those school districts, the California Teachers Association, and the National Education Association were named as defendants in the complaint. The teachers were ( and still are) being assisted by the Center for Individual Rights. 

In July 2014, Legal Clips summarized an article in The New York Times reporting that the U.S. Supreme Court, in a 5-4 decision in Quinn v. Harris, ruled that a category of government employees did not have to pay any fees to the unions representing them. 

However, the split decision left in Supreme Court precedent that requires many public employees to contribute such fees. Justice Alito, who wrote the majority’s opinion,  concluded that there was a category of government employees, a partial public employee, who can opt out of joining a union and not be required to contribute union fees. He reasoned that home-care aides who typically work for an ill or disabled person, with Medicaid paying their wages, should be classified as partial public employees and should not be treated the same way as public schoolteachers or police officers who work directly for the government.

In June 2012, Legal Clips summarized a decision by the U.S. Supreme Court in Knox v. Service Employees Int’l Union, Local 1000 holding that a California public sector union had violated the First Amendment when it imposed a special assessment on non-members to fund solely political activities without providing those individuals with the opportunity to opt out of paying the fee.]


U.S. Supreme Court agrees to review affirmative action case involving University of Texas’s race-based admissions policy

The New York Times reports that the U.S. Supreme Court has granted review in Fisher v. University of Texas, No. 14­-981, a case involving a challenge to the use of race in admissions decisions by the University of Texas at Austin. The case had previously been before the Supreme Court in 2013 at which time the Supreme Court vacated the U.S. Court of Appeals for the Fifth Circuit’s decision upholding the constitutionality of the University of Texas’ (UT) admission policy, which considers race as one of many factors in undergraduate admissions. The U.S. Supreme Court remanded the case to the Fifth Circuit for further proceedings because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Gutter and . . . Bakke . . .”

In granting review of the case, the Supreme Court signaled that it might be prepared to issue a major decision on the role race may play in government decision-making. Justice Kennedy, writing for the majority in 2013, said the appeals court had been insufficiently skeptical of the program, which has unusual features. The Fifth Circuit on remand then endorsed the program for a second time.

The question in the Texas case was whether its flagship state university was entitled to supplement its race­ neutral Top 10 program with a race conscious holistic one. The Supreme Court’s 2013 decision in Fisher reaffirmed that educational diversity is an interest sufficient to overcome the general ban on racial classifications by the government. But it added that public institutions must have good reasons for the particular methods they use to achieve that goal.

In 2014, in its second encounter with the case, a divided Fifth Circuit three-­judge panel held that the Texas admissions plan satisfied strict scrutiny. “We are persuaded that to deny U.T. Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience,” said the panel’s majority. The dissenting judge, on the other hand, said the university’s justifications for using race were “subjective, circular or tautological.”

Source: The New York Times, 6/29/15, By Adam Liptak

[Editor’s Note: In February 2015, Legal Clips summarized an article in USA Today reporting that Abigail Fisher, through her attorneys, had again filed a petition for certiorari asking the U.S. Supreme Court to review a Fifth Circuit decision upholding the constitutionality of the University of Texas at Austin’s undergraduate admissions policy. Fisher’s latest petition repeats the same arguments that she made previously, namely that the policy’s use of race as a factor in making admissions decisions violates her equal protection rights under the Fourteenth Amendment.]

Federal court denies California district’s motion to dismiss environmental lawsuit, allows suit seeking cleanup of school facilities to continue

The Santa Monica Daily Press reports that U.S. District Court Judge Percy Anderson denied a request by the Santa Monica-Malibu Unified School District to dismiss a suit, which was filed in March by America Unites for Kids and Public Employees for Environmental Responsibility, that seeks the removal of polychlorinated biphenyls from Malibu High and Juan Cabrillo Elementary Schools.

March by America Unites for Kids (AUK) and Public Employees for Environmental Responsibility (PEER), which have repeatedly criticized the school district for spending millions of dollars on consulting and legal fees over the last two years, now aim to conduct additional testing at the facilities as they urge SMMUSD officials to expedite the remediation process.

AUK president Jennifer deNicola said, “The district has spent far more money avoiding a cleanup than a full cleanup would ever cost.” She added, “All our nation’s children deserve a safe learning environment free from PCBs; an education that will not jeopardize their health.”

SMMUSD expressed disappointment with the ruling, vowing to continue to adhere to federal guidelines for chemical testing and cleanup. It said, “SMMUSD would have preferred that the court dismiss the lawsuit outright,” the district’s statement reads, (but) “the ruling is a sound endorsement of the Environmental Protection Agency policy regarding management of PCBs in building materials in schools, which has been closely followed by SMMUSD.”

SMMUSD contends that several rounds of testing at the Malibu campuses have shown chemical levels to be below EPA thresholds in multiple locations. AUK and PEER, on the other hand, assert that PCBs exist in concentrations higher than allowed in the federal Toxic Substances Control Act. They have accused the district of manipulating results by leaving windows and doors open and pre-cleaning surfaces before testing.

The court’s ruling appears to set the stage for additional testing of pre-1979 buildings at the sites in question. “The parents and teachers believe that further testing will demonstrate that PCB contamination is widespread,” the plaintiffs’ statement reads, “and that the only solution both to protect kids and teachers and to comply with the law is a thorough investigation to identify and remove all PCBs found to be at illegal levels.”

Meanwhile, in the midst of the suit the school board is considering breaking the school district into separate Malibu and Santa Monica factions. Malibu activists, unhappy with MMUSD’s handling of  chemical testing and its recently implemented centralized fundraising system, favor the split.

Source: Santa Monica Daily Press, 6/23/15, By Jeffrey Goodman

[Editor’s Note: In May 2015, Legal Clips summarized a story from ABC News 10 reporting that a class action lawsuit has been filed against Ametek Aerospace & Defense (AAD) on behalf of parents, students and teachers at Magnolia Elementary School (MES). Attorney John Fiske of Gomez Trial Attorneys, who are representing the plaintiffs, said, “They dumped up to 7,000 gallons of chlorinated solvent waste into the ground a month.” He added, “That waste has created the largest TCE plume underground in the state of California.”] 


Sixth Circuit rules that Tennessee district did not violate First Amendment’s Establishment Clause by contracting with private religious school to provide alternative school program

Smith v. Jefferson Cnty. Bd. of Comm’rs, No. 13-5957 (6th Cir. Jun. 11, 2015)

Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel has ruled that a Tennessee school district’s decision to outsource its alternative school program to a private Christian school did not violate the First Amendment’s Establishment Clause. The panel concluded that the school district’s action of contracting with the Christian school to provide an alternative school program passed constitutional muster because, as the three-prong test established in Lemon v. Kurtzman, 403 U.S. 602 (1971) requires: (1) there was a secular purpose for the district’s action; (2) the relationship between the school district and the Christian school did not amount to government endorsement of religion; and (3) the relationship did not foster excessive entanglement between church and state.

Although all three judges agreed that the school district had not violated the Establishment Clause, one judge wrote a separate opinion concurring in part and in the result, but offering different reasoning for that result than that set out in panel’s opinion.

Facts/Issues: Facing budgetary constraints for the upcoming 2003-04 school year, the Jefferson County Board of School Commissioners (JCBSC) voted to eliminate the alternative school and the positions of  two teachers.  After deciding to close the alternative school, JCBSC voted to outsource alternative school services for Jefferson County students to Kingswood School (KS). The board’s officially stated reason for the closure and outsourcing was financial considerations due to budget cuts. KS is a religious school that specializes in providing treatment programs for students with behavioral and emotional problems. The two teachers filed suit in federal district court against JCBSC and its members in their official and individual capacities.

The suit alleged that the defendants’ actions had violated the teachers’ rights under the First Amendment’s Establishment Clause, the Fourteenth Amendment’s Due Process Clause, and state establishment clause. The plaintiffs filed a motion for partial summary judgment on the establishment and due process claims. Defendants responded with a motion for summary judgment. The district court denied the plaintiffs’ motion, in part for lack of standing, but granted the defendants’ motion.

The Sixth Circuit, sitting en banc (all active judges participating in considering and deciding the case), ruled that the teachers, who lost their positions when the school board decided to close the school in favor of outsourcing services to a private religious school, had municipal taxpayer standing to file suit claiming the board’s decision violated the federal and state constitutions’ Establishment Clauses. It rejected, however, the teachers’ procedural and substantive due process claims, and held that the individual board members enjoyed legislative immunity from the suit.

The Sixth Circuit remanded the case to the district court to consider the claims under the Establishment Clause.

The district court subsequently denied JCBSC’s motion for summary judgment. A bench trial took place in May 2013. In July 2013, the district court issued its findings of fact and conclusions of law, holding that JCBSC had violated the Establishment Clause. The court permanently enjoined JCBSC “from contracting with Kingswood or another religious entity for the operation of its alternative school.” It also awarded plaintiffs damages for lost wages during the 2003–2004 school year.

Ruling/Rationale:  The Sixth Circuit panel reversed the district court’s decision, vacating the judgment, vacating the injunction against JCBSC, vacating the award of damages and vacating the order granting attorney’s fees.

It began by addressing two objections by JCBSC to the district court’s factual findings. In regard to JCBSC’s assertion that the district court erred in finding that KS’s day and residential programs were not meaningfully distinct, the panel concluded that JCBSC had misread the district court’s opinion. While acknowledging the district court’s use of a double negative was somewhat confusing, it stated “there can be no doubt about its meaning: the two programs are meaningfully distinct, or at least the evidence does not suggest otherwise.” As to JCBSC’s second objection that the district court erred in characterizing KS “as a self-proclaimed religious institution,” the panel concluded JCBSC’s argument failed on the merits because “[f]rom the evidence in this case, it would certainly be permissible to conclude that Kingswood described itself as a religious institution.”

The panel then took up the issue of whether JCBSC’s outsourcing of its alternative school program to KS, a private religious school, ran afoul of the First Amendment’s Establishment Clause. It began its analysis utilizing the three-prong Lemon test. Under that the test, government action passes constitutional muster only if it satisfies all three prongs.

In addition to the Lemon test, the panel utilized the “endorsement” analysis set out by Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668 (1984). It pointed out that unlike Lemon’s first prong which is subjective, the Lynch “endorsement” analysis, focuses on the objective question of whether a reasonable observer would think that the activity is a governmental endorsement of religion. Finally, the panel addressed the historical approach used in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

Addressing Lemon’s first prong, the panel found there was no question JCBSC had a secular purpose because its “sole motivation” for contracting out its alternative-school services to KS was “to reconcile the Board’s budget with the Commission’s fund allotment.” However, it dismissed the relevance of Town of Greece because the decision “does not impact our approach to the case before us.” It stated that in the words of Wallace v. Jaffree, 472 U.S. 38, 80 (1985) : “The simple truth is that free public education was virtually nonexistent in the late 18th century . . . [so] it is unlikely that the persons who drafted the First Amendment, or the state legislators who ratified it, anticipated the problems of interaction of church and state in the public schools.”

Finding that Town of Greece gave no indication that the Supreme Court intended to abandon the endorsement test or for that matter Lemon, the panel next examined whether the relationship between JCBSC and KS had the primary effect of advancing religion. It pointed out that Supreme Court Establishment Clause jurisprudence made it clear that state endorsement of religion occurs “when it coerces participation in a religious activity.” It found nothing to suggest that JCBSC’s “association with Kingswood coerced students to partake in religious activity of any kind, either directly or through peer pressure.”

The panel stressed, however, that even in absence of coercion, “government violates the endorsement test if a reasonable observer would think that the activity is a governmental endorsement of religion.” Applying the reasonable observer test to the facts in the present case, it determined that “a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion.” The panel found that “[t]he evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all.”

The panel concluded:

Viewed in this context, it is clear that the taxpayers, School Board, parents, and students all benefited from the relationship between the Board and Kingswood. While this benefit was being conferred, parents and children received only slight exposure to religious content.

The panel rejected the plaintiffs’ reliance on Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), in which the Sixth Circuit held that it was unconstitutional for a public school to display a portrait of Jesus in a hallway. It found “the purpose of the arrangement with Kingswood was purely educational, and the religious references merely incidental,” concluding that a “reasonable observer would rightly view the religious references in this case very differently from the portrait in Washegesic.”

The panel also found the plaintiffs’ reliance on Doe ex rel. Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012) (en banc), unpersuasive because “[t]here are significant differences between Elmbrook and the case before us that lead to the difference in the outcome.” Finally, it found no excessive entanglement between church and state under Lemon’s third prong. It emphasized that JCBSC was not providing KS with government aid, rather it was paying under a contract for services rendered. It noted, “Kingswood’s performance of the contracted service, the education of the alternative-school students, did not require significant monitoring because it took place in the context of an established and structured day program—a program that, as discussed, was consistently run in a secular manner.” Lastly, the panel concluded there was no danger of excessive entanglement from the delegation of essential governmental functions to religious entities because KS “carried out its service in a secular manner.”

The concurring opinion argued that it was a canard to grant the plaintiffs standing as taxpayers, contending the suit was an “employment-contract dispute masquerading as an Establishment Clause case.” It also stressed that courts “do not grant monetary damages for violations of the Establishment Clause.”

Turning to the reasoning in the panel’s opinion, the concurrence conceded that “unless and until the Supreme Court explicitly holds that it has abandoned the Lemon endorsement test, the lower courts are bound to continue applying that test in contexts where the Court has previously employed it.” Nonetheless, it took issue with the “lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece.” It noted, “There, in the context of a challenge to legislative prayer, the Supreme Court addressed the issue of what test governs an Establishment Clause challenge to government action.” The concurrence argued: “Town of Greece is apparently a major doctrinal shift regarding the Establishment Clause, declaring a two-pronged test for Establishment Clause cases, a test based upon the historical approach the Court had followed in Marsh, Van Orden, and Hosanna-Tabor, and adding the coercion principle it followed in Lee and Santa Fe.”

Regarding application of Town of Greece’s historical-inquiry test in the present case, the concurrence stated “the question would be whether the Framers would regard the Kingswood contract as an establishment of religion.” It posited that if JCBSC’s “contract would be historically acceptable to the Framers, we would then be required to also ask if it passes muster under the coercion prong of Town of Greece.”

In the concurring judge’s view, the U.S. Supreme in Town of Greece “gave several indications that it intends to displace the endorsement test, foremost of which was that Justice Kennedy’s opinion for the Court went beyond Marsh to adopt his four-Justice dissent from Allegheny.” While it believed that the “Supreme Court has rejected the endorsement test in favor of the historically grounded coercion test,” it concluded “lower courts are bound to follow Supreme Court cases invoking the endorsement test until the Justices explicitly overrule Allegheny and its progeny.” As a result, the concurrence ultimately conceded “school-funding cases must be examined under the endorsement test,” and applying that test in the present case led to the conclusion “that no reasonable observer would regard the School Board’s action as an endorsement of religion.”

Smith v. Jefferson Cnty. Bd. of Comm’rs, No. 13-5957 (6th Cir. Jun. 11, 2015)

[Editor’s Note: In May 2014, Legal Clips summarized an article in The New York Times reporting that a five justice majority, led by Justice Kennedy, in Town of Greece v. Galloway held that a New York State town’s practice of beginning public town board meetings with a prayer from a “chaplain of the month” passes constitutional muster. Kennedy wrote, “[C]eremonial prayer is but a recognition that, since this nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond that authority of government to alter or define.”

In August 2012, Legal Clips summarized the Seventh Circuit’s en banc decision in Doe v. Elm Brook S.D. holding that a Wisconsin school district violated students’ rights under the Establishment Clause when it held graduation ceremonies for two of its high schools at a local Christian church. After analyzing the facts under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the endorsement and coercion tests, the majority concluded that the sheer religiosity of the church ran afoul of the “primary effect” prong of Lemon, in that it created a likelihood that high school students would perceive a link between church and state, conveying a message of religious endorsement. The majority stressed that its ruling was of limited scope, and should not be read as constitutionally condemning any government use of church-owned facilities, nor “as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities.”]


Illinois Attorney General settles suit with state high school athletic association to allow disabled student-athletes in certain sports to participate in association sanctioned competitions

According to an Associated Press (AP) report on Pantagraph.com, Illinois Attorney General Lisa Madigan has settled a suit with the Illinois High School Association (IHSA) that will allow disabled student-athletes to compete and earn points toward a team state championship in swimming, diving and track and field. Madigan’s lawsuit accused the IHSA with violating federal laws affecting the disabled.

Under the settlement, the IHSA must maintain records for disabled student-athletes as it does for all other student-athletes. It also must adopt a revised accommodations policy for student-athletes with disabilities and provide a trained Americans with Disabilities coordinator. Madigan’s office also will monitor the IHSA’s responses to accommodation requests from disabled students. IHSA staff, board members, coaches and officials will be trained in ADA issues. IHSA also must create an annual road race open to all Illinois high school students that recognizes finishers in each gender in both an open and wheelchair division.

Source: Pantagraph.com, 6/24/15, By AP

[Editor’s Note: In May 2012, Legal Clips summarized an article in the Chicago Sun-Times reporting that Illinois Attorney General Lisa Madigan had filed suit in federal court, seeking to make it possible for student-athletes with disabilities to compete in future IHSA state meets. The suit asked for an injunction ordering IHSA “to cease unlawful discrimination against athletes with disabilities,” and to create more opportunities for athletes with disabilities by setting state-qualifying standards for those athletes in individual sports, including swimming and track and field.]

U.S. Supreme Court upholds disparate impact discrimination claims under federal Fair Housing Act

In 5-4 decision, the U.S. Supreme Court held that the federal Fair Housing Act (FHA) supports disparate impact claims of discrimination, says an Associated Press (AP) report in The Washington Post. Justice Kennedy, speaking for a narrow majority, upheld the use of the disparate impact theory of liability, which challenges race-neutral policies that have a negative impact on minority groups.

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371, involved an appeal from decisions by Texas officials accused of violating the FHA by awarding federal tax credits in a way that kept low-income housing out of white neighborhoods. The U.S. Court of Appeals for the Fifth Circuit ruled that a fair housing group, The Inclusive Communities Project, Inc. (ICP), could use statistics to show that the effect of policies used by the Texas Department of Housing and Community Affairs (TDHCA) had a negative impact on black residents.

ICP argued that even if there was no motive to discriminate, the government’s policies harmed black residents. The effect, the group claimed, was perpetuating segregated neighborhoods and denying blacks a chance to move into areas with better schools and lower crime rates. TDHCA countered that it was unfair to have to justify or change policies that didn’t facially discriminate. While disparate impact has been used routinely in employment discrimination cases, TDHCA said such claims were not expressly written into the housing law. It argued that allowing them would essentially force them to make race-conscious decisions to avoid liability.

Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, said language in the FHA discrimination “because of race” allows for disparate impact cases. He said such lawsuits “may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.” Business groups complained that using disparate impact to expose every decision to legal challenge is unfair if those practices are based on sound underwriting and compliance with federal regulations.

Justice Alito dissenting from the majority said disparate impact was not specifically allowed in the text of the housing law. He warned that the tactic can also result in perverse outcomes, such as a recent Minnesota case where a landlord claimed a city’s efforts to make him combat rat infestation and unsanitary conditions in low income housing would cause an increase in rent. Chief Justice Roberts and Justices Scalia and Thomas joined Alito’s dissent.

Thomas also filed a separate dissent questioning the very foundation of the disparate impact theory. “Racial imbalances do not always disfavor minorities,” Thomas said, noting that over 70 percent of National Basketball Association players are black. “To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence,” Thomas said.

Attorney General Loretta Lynch said the Justice Department would continue to vigorously enforce the Fair Housing Act “with every tool at its disposal – including challenges based on unfair and unacceptable discriminatory effects.”

Sherrilyn Ifill, president of NAACP Legal Defense Fund said the FHA is critical in bridging the nation’s racial divide, especially in light of the shooting at a black church in Charleston, South Carolina. “Anyone who has been paying attention in the last week knows that we can no longer afford to live the way we have as two separate bifurcated parts of this country,” Ifill said.

Source: The Washington Post, 6/25/19, By Sam Hananel (AP)

[Editor’s Note: In June 2015, Legal Clips summarized a decision by the U.S. Supreme Court in EEOC v. Abercrombie & Fitch reversing the U.S. Court of Appeals for the Tenth Circuit’s decision holding that under Title VII an employer is only required to provide an employee or prospective employee with a religious accommodation when the employer has actual knowledge of the need for accommodation. The eight justice majority held: “To prevail in a disparate-treatment claim, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.” Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Justice Alito filed an opinion concurring in judgment. Justice Thomas filed an opinion concurring in part and dissenting in part.]

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