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Chicago school board’s new student discipline code reduces use of suspensions and expulsions

The Chicago Board of Education (CBOE) has approved a new student discipline code that reduces reliance on suspensions and expulsions, reports the Chicago Tribune. CBOE is calling on school district officials to persuade privately-run charter schools to adopt the board’s new approach to student discipline.

Chicago Public Schools chief Barbara Byrd-Bennett said officials have spoken to charter networks to encourage them to sign on to the district’s disciplinary code. She added that “what we are exploring now is the legality in terms of whether we can force the issue.” According to data release in 2014, charter schools have disproportionately high expulsion and suspension rates.

Although 10 charter schools have adopted the new code, the majority of charter schools are not inline with CBOE’s approach, which follows a national trend toward using conflict resolution and other restorative justice practices in an effort to keep students in the classroom. Responding to calls for adopting the CBOE code, Illinois Network of Charter Schools issued a statement that said that charters “take very seriously the issue of appropriate discipline and minimizing excess suspensions and expulsions across the district” and have a history of innovative approaches to discipline.

The new code eliminates mandatory expulsions for students below sixth grade for any infractions except those involving weapons. It also ends the practice of suspending students caught with cellphones  unless they’re using the device to harass, incite violence or disrupt other students.

In addition, the policy does away with the concept of “persistent defiance.” Under the new code, school administrators are required to call in police only in cases that involve possession of firearms or drugs.

Source: Chicago Tribune, 6/25/14, By Noreen S. Ahmed-Ullah 

[Editor’s Note: In May 2014, Legal Clips summarized an article in Education Week reporting that the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) had issued guidance on charter schools in the form of a “Dear Colleague” letter (DCL), reports Education Week.  The DCL was written by Assistant Secretary for Civil Rights Catherine E. Lhamon.  It provides specific guidance for charter schools related to student admissions, students with disabilities, English-language learners (ELL), and student discipline. On the subject of student discipline, the DCL echoes more general federal guidance issued in January 2014 that called on schools to back off of zero tolerance policies and ensure that disciplinary policies and practices do not have a “disparate impact” on disabled students or students who are racial or ethnic minorities.] 

Unanimous U.S. Supreme Court rules that police must obtain warrant before searching the cell phone of individual placed under arrest

In an unanimous decision, the U.S. Supreme Court has ruled  police must obtain a warrant before searching the cellphones of individuals placed under arrest, reports The New York Times. The decision came in two consolidated cases, Riley v. California, Docket No. 13-132. and U.S. v. Wurie, Docket No. 13-212. Chief Justice Roberts, who wrote the Court’s opinion, acknowledged that cell phones are “…  a pervasive and insistent part of daily life ….” Roberts pointed out that implicit in the Fourth Amendment is a revulsion against “general warrants,”and “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought.”

The Chief Justice took note of  legal precedent  allowing warrantless searches in connection with arrests when there is a need to protect police officers and to prevent the destruction of evidence. However, he found neither justification applied n the context of cellphones because the “data on the phone can endanger no one.” In reponse to the argument  that evidence could be destroyed or hidden by “remote wiping” or encryption programs,  Chief Justice Roberts said such a  possibility was remote, speculative and capable of being addressed. He suggest the police may turn off a phone, remove its battery or place it in a bag made of aluminum foil.

Should the police confront an authentic “now or never” situation, the Chief Justice said, they may well be entitled to search the phone under a separate strand of Fourth Amendment law, one concerning “exigent circumstances.” He acknowledged that the decision would make law enforcement more difficult. “Cellphones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals,”Chief Justice Roberts said. “Privacy comes at a cost.” But other technologies, he said, can make it easier for the police to obtain warrants. Using email and iPads, the chief justice wrote, officers can sometimes have a warrant in hand in 15 minutes.

Source: The New York Times, 6/25/14, By Adam Liptak

[Editor’s Note: In May 2014, Legal Clips summarized an article in the Chicago Tribune reporting on the oral argument before the Supreme Court in Riley and Wurie. During the two hours of arguments, the justices appeared sympathetic to the need of police officers to quickly search phones when a suspect is arrested but were also wary of privacy concerns raised by the amount of personal data now kept on mobile devices.  The justices indicated they might issue a ruling that says police need a warrant in some circumstances but not in others.

As the Times article indicates Chief Justice Roberts delivered the Court’s opinion. Justice Alito contributed an opinion oncurring in part and concurring in
the judgment.]

OCR conducting investigation into whether Florida district’s disciplinary practices are racially discriminatory

The Tampa Tribune reports that the U.S. Department of Education’s Office for Civil Rights (OCR) is investigating Hillsborough County school district to determine if the district discriminates against African-American students by subjecting them to harsher discipline than white students and by denying access to experienced teachers for schools serving poorer students. The investigation is the result of a complaint  filed by community activist Marilyn Williams, a retired educator who has served on the education committee for the local chapter of the NAACP.

OCR’s letter to the school district requested 43 types of records for the last three school years, broken down by school, including discipline statistics, policies and procedures, descriptions of all offenses for which students can be written a referral, the role of school resource officers in the disciplinary process and the number of years each teacher has been in the profession.

The school board’s attorney Jim Porter informed the board that the nature of the investigation is unusual because instead of  focusing on a specific student, the focus is district-wide. Porter said he will work with school district attorney Tom Gonzalez to submit the requested data.

Hillsborough is among a number of Florida school districts to receive the government’s request for discipline data. “This topic has been part of a national agenda,” schools Superintendent MaryEllen Elia said.

In January, U.S. Attorney General Eric Holder and Education Secretary Arne Duncan issued recommendations to school districts across the country encouraging training for all classroom teachers in classroom management, conflict resolution and approaches to de-escalate classroom disruptions. In essence, the federal government told districts that they should adhere to principles of fairness and equity in student discipline or face federal scrutiny if they don’t.

In the 2012-13 school year, the graduation rate for African-American Hillsborough students as measured by federal standards was just 59%, a slight increase from the previous year. That compares to the district-wide rate of 74%. In schools nationwide in the 2011-12 school year, African-American students without disabilities were more than three times as likely as whites to be expelled or suspended. The same is true in Hillsborough County.

Discipline data in Hillsborough saw a significant shift from the 2011-12 school year to 2012-13 – out-of-school suspensions of African-American students were cut nearly in half, from 4,000 to less than 2,000. For white students, the number decreased to less than 1,000, a 39% drop.

Source: The Tampa Tribune, 6/24/14, By Erin Kourkounis

[Editor’s Note: The Tribune article refers to the joint guidance issued by ED and U.S. Department of Justice (DOJ) in January 2014 providing recommendations for alternatives to out-of-school  suspensions. Legal Clips published a Sua Sponte item summarizing the ED/DOJ  guidance that was issued in the form of a “Dear Colleague Letter” (DCL). The DCL statedThis guidance intends to “help public elementary and secondary schools administer student discipline in a manner that does not discriminate on the basis of race.”  While focused on race, the DCL also reminds schools that “Federal law also prohibits discriminatory discipline based on other factors, including disability, religion, and sex.” 

In June 2014, Legal Clips summarized an article in the Palo Alto Weekly reporting that Palo Alto school board members signaled unanimous support for a resolution that calls on the U.S. Department of Education’s Office for Civil Rights (OCR) to correct errors in its investigation processes, which the school board believes are “purposely confrontational and disruptive.”  Board members reiterated complaints that OCR lawyers had failed to address contested facts, burdened the district with massive information requests, and had not completed investigations in a timely fashion.]  

U.S. Supreme Court rules public employee’s sworn trial testimony under subpoena was protected First Amendment speech

NPR reports that the U.S. Supreme Court has ruled that a public employee’s sworn testimony under subpoena regarding corruption is protected First Amendment speech. The Court concluded that his firing was in retaliation for that testimony. Lane v. Franks, Docket No. 13-483,  involved  the firing of  Edward Lane from his job leading the school’s program for at-risk youth by Central Alabama Community College President Steve Franks. Lane discovered a state legislator was on the program’s payroll despite doing no work for the group. Franks fired him after Lane testified in an ensuing FBI case against the elected official. The Justices, in a unanimous decision, 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. 

The Court found Lane had testified “as a citizen on a matter of public concern” and called sworn testimony at a trial “a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”  Justice Sonia Sotomayor wrote the Court’s opinion. Justice Clarence Thomas, who was joined by Justices Antonin Scalia and Samuel Alito, filed a concurring opinion.  Justice Sotomayor stated: “[T]he First Amendment protection of a public employee’s speech depends on a careful balance ‘between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'” 

Source: NPR, 6/19/14, By Bill Chappell

[Editor’s Note: Justice Sotomayor’s opinion in Lane v. Franks defined the issue as: “[W]hether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.”  According to Justice Sotomayor:  It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.

In May 2014, Legal Clips summarized an article in Education Week reporting on oral argument in Lane v. Franks. The Court ultimately rejected Frank’s argument that Lane’s testimony “was inseparable from his job duties,” but agreed with Alabama Attorney General Luther J. Strange contention that Lane was testifying as a citizen but that Franks merited immunity from personal liability because it wasn’t clearly established that Lane’s speech was protected.] 

Federal suit charges Pennsylvania district’s superintendent failed to end sexting by teacher

According to The News Item, three former students have filed suit against  Shamokin Area School District (SASD) and Superintendent James Zack claiming Zack failed to take disciplinary against a former substitute teacher Michael S. Zack, his nephew, when the superintendent learned he was sexting students.  The suit also alleges that others in the district also became aware of the sexually explicit messages, including a teacher and a school board member, both unidentified in the lawsuit, but failed to take any action. 

Although police identified four victims in the case, only three are suing. The sexting took place in the summer and fall of 2011 when Michael  Zack allegedly sent them thousands of graphic messages through text, email and chat. The victims were between 15 and 17 years-old at the time.

The suit states:

As a result of the school district’s indifference to Zack’s inappropriate sexual behavior, he continued to have access to (the plaintiffs) and was allowed to teach their classes, and persisted in bombarding the girls with sexually inappropriate text messages and pornographic photographs for months, until he was finally arrested in mid-November 2011.

Michael Zack was fired by the school board in December 2011 retroactive to his November arrest. Charges followed three months later. He pleaded guilty to a felony count in December 2012. His original sentence was scuttled within six weeks after police said he violated probation. He was re-sentenced and served the minimum of a 6 to 23 month stretch in county jail.

The lawsuit claims the plaintiffs’ civil rights were violated, saying SASD had deliberate indifference to a sexually hostile educational environment. Superintendent James Zack said he was unaware of the lawsuit. He referred comment to the district’s solicitor, James Zurick, who said the district would respond after the lawsuit had been reviewed in full. School board President Ronald McElwee also was unaware and declined comment.

Source: The News Item, 6/19/14, By Eric Scicchitano

[Editor’s Note: In December 2011, Legal Clips summarized an article in the San Antonio Express-News reporting that the Judson Independent School District (JISD) school board had voted 6-0 to terminate elementary school counselor Cynthia Stewart, who was accused of sexting a 15 year-old student. Stewart reportedly has been charged with distributing obscene material to a minor and online solicitation of a minor.] 

Federal government imposes more stringent special education requirements on states

The Washington Post reports that the U.S. Department of Education (ED) is tightening its oversight of how states are educating their special needs students. As a result of the more stringent criteria, the number of states and territories in compliance with federal law has dropped from 38 to 15.

Until now, Compliance with the Individuals with Disabilities Education Act’s  (IDEA)  guarantee to disabled students of a “free appropriate public education” consisted of ED determining whether states evaluated students for special needs in a timely manner, whether they reported information to the federal government and met other procedural benchmarks. ED distributes $11.5 billion annually to states to help pay for special education and monitors their performance.

The new standards will consider student performance outcomes in additional to states’ satisfying procedural safeguards. ED will now evaluate how well special-education students score on standardized tests, the gap in test scores between students with and without disabilities, the high school graduation rate for disabled students and other measures of achievement.

In order to determine states’ compliance with the new standards, ED is using a complex matrix that weighs several factors, including how well students with disabilities perform on the National Assessment of Educational Progress, or NAEP, a test the federal government gives to a sampling of students in every state every two years.

NAEP is designed to offer a snapshot of academic performance. This marks the first time the government has tied NAEP scores to consequences. ED also will be looking at the number of students with disabilities who take state standardized tests.

Under IDEA, ED sorts states and territories into four categories: meets requirements, needs assistance, needs intervention or needs substantial intervention. If a state needs assistance for two years in a row, IDEA requires the department to order the state to obtain technical assistance or label the state “high-risk,” which means federal dollars could be withheld.

The department has never withheld federal dollars to educate special-needs students, said Michael Yudin, ED’s acting assistant secretary for special education and rehabilitative services, acknowledged the department has never withheld federal special education funding from states. However, it has directed states who are out of compliance  how to use some of their funds.

Source: Washington Post, 6/24/14, By Lyndsey Layton

[Editor’s Note: In ED’s press release announcing implementation of the new IDEA compliance standards, it stated:

The Department has worked extensively with states to ensure meaningful access to special education and related services for students with disabilities and has noted significant improvements in compliance over the last several years. However, educational outcomes in reading and math, as well as graduation rates, for students with disabilities continue to lag. With this year’s IDEA determinations, the Department used multiple outcome measures that include students with disabilities’ participation in state assessments, proficiency gaps between students with disabilities and all students, as well as performance in reading and math on the National Assessment of Educational Progress (NAEP) to produce a more comprehensive and thorough picture of the performance of children with disabilities in each state.

The release also provides links to graphs, state fact sheets, letters, and  the work of ED’s Office of Special Education and Rehabilitative Services.]


Federal appellate court rules teacher’s tenure status under state law was dependent on being reemployed

Barbee v. Union City Bd. of Educ., No. 13-5188 (6th Cir. Mar. 17, 2014)

Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel, in a 2-1 split, has ruled that former teacher was not entitled to tenure protections because school board’s election to grant him tenure was provisional conditioned on his being reemployed for the next year. The panel determined that in order to achieve tenured status in Tennessee a teacher must show: (1) that the director of schools recommended teachers to the school board as being eligible for tenure; (2) the board must elect based on the director’s recommendation teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with the teachers; and (3) the teacher must satisfy the four tenure-eligibility requirements detailed in the Tennessee Teacher Tenure Act (TTTA). It found the former teacher failed to satisfy the fourth of the four requirements, i.e., (4) that the teacher be “reemployed by the board for service after the probationary period.”

The panel, rejecting the former teacher’s argument that the board’s decision to extend tenure to him acted as immediate reemployment of him, stated “that on nearly every occasion when a Tennessee state court has had occasion to discuss the [TTTA’s] reemployment requirement, it has either explicitly or implicitly indicated that reemployment refers to the school year that follows the three-year probationary period.” It concluded that the TTTA’s plain language and relevant caselaw favored the school board’s contention that the teacher was not reemployed and, therefore, not tenured.

Facts/Issues: Preston Barbee was employed by the Union City Board of Education (UCBOE) as a teacher and assistant basketball coach at Union City High School (UCHS) from the 2008-09 school year to the end of the 2010-11 school year. Despite several incidents that marred his employment record, the director of schools recommended Barbee for tenure in April 2011. The school board approved that recommendation and “elected” Barbee for tenure.

However, following the board meeting at which he was “elected,” multiple student allegations concerning Barbee surfaced, and these allegations eventually led to his termination. Although he denied the allegations, Barbee was suspended without pay. On May 2, 2011, Barbee met with the director of schools and UCHS’s principal. At this meeting, Barbee was “placed on leave for the rest of the school year, with pay.” Barbee was also informed via letter that as “a non-tenured teacher” he would “not be rehired to teach in the Union City School System for the 2011-12 school year.”

After Barbee’s contract was non-renewed, several letters were exchanged between the parties’ attorneys. In June 2011, an attorney from the Tennessee Education Association (TEA) sent the director of schools a letter concerning Barbee’s tenure status, stating that the minutes from the April 2011 board meeting indicated that Barbee was reemployed, and that Barbee was tenured. In response, UCBOE’s attorney, Charles Cagle, sent a letter to TEA concerning Barbee, stating that “conferral of tenure status does not become immediately effective” until after the teacher is reemployed for the following school year. According to Cagle, because Barbee was not reemployed, he was not tenured.

In September 2011, Barbee filed suit in state court against UCBOE and the director. The defendants removed the case to federal district court. The district court granted summary judgment for the defendants. It concluded reasoned that Barbee’s tenure would not have gone into effect until after UCBOE or the director reemployed Barbee for the 2011-12 school year. The court found that neither the minutes from the Board of Education’s April 2011 meeting nor the letter from Cagle indicated that Barbee met the reemployment requirement under Tennessee law. It held that Barbee was not tenured and therefore not entitled to the procedural safeguards in the TTTA.

Ruling/Rationale: The panel’s majority affirmed the district grant of summary judgment in favor of the defendants. It focused its analysis on the TTTA. It pointed out that under state law a tenured teacher “may be dismissed, suspended, or have his contract non-renewed only with cause and after having been given notice, a hearing, and an opportunity for judicial review,” noting those procedural safeguards are not available to non-tenured teachers.

The majority stated that in order for a teacher to obtain tenured status under the TTTA, he must meet three prerequisites. First, the teacher must be among those teachers the director of school recommends to the school board who are eligible for tenure. Second, the school board must “elect,” based on the director’s recommendation, “teachers who have attained or are eligible for tenure and fix the salaries of and make written contracts with the teachers.” The majority stressed that the “election prerequisite” is the exclusive duty of the school board. Third, a teacher must satisfy four tenure-eligibility requirements listed in the TTTA:

 (1) Has a degree from an approved four-year college or to any vocational teacher who has the equivalent amount of training established and licensed by the state board of education; (2) Holds a valid professional license based on training covering the subjects or grades taught; (3) Has completed a probationary period of three (3) school years or not less than twenty-seven (27) months within the last five-year period, the last year to be employed as a regular teacher; and (4) Is reemployed by the board for service after the probationary period. 

It emphasized that under TTTA it is  “the duty of the board of education to assign [employment and nonrenewal duties] to its director of schools.”

The majority stated that the question of whether Barbee was tenured at the time of his nonrenewal required analysis of whether the TTTA’s three prerequisites were met. The parties agreed that first prerequisite had been met, but differed as to whether Barbee had met the second and third perquisites. In regard to Barbee’s argument that the second prerequisite had been met because election occurred, the OCBOE countered that only “provisional election” occurred.

The majority, in agreement with OCBOE, concluded that the school board action at its April 2011 meeting could only be viewed “as a grant of provisional tenure conditioned on Barbee’s later fulfillment of the tenure-eligibility requirement of reemployment.” It based its conclusion on two reasons. First, it characterized Barbee’s argument as an attempt to merge two prerequisites, claiming that “they are synonymous.” The majority determined the argument was not supported by TTTA’s language and structure. It emphasized that under the law the board’s act of “election” is distinct from “reemployment.” It said “reemployment” is best interpreted as renewal of a teacher’s contract, which under the TTTA the director is responsible for, via school board’s assigning the duty to employ teachers to the director. Election, on the other hand, is the exclusive duty of the board. The majority, therefore, concluded: “While the Board of Education did act to provisionally elect Barbee, it had not yet acted (through Director Houston) to reemploy Barbee.”

The majority rejected Barbee’s argument attempting to merge the requirement of reemployment with the prerequisite of election on the ground it “does violence to the statutory scheme.” While acknowledging both are discretionary acts, it emphasized that “reemployment (like completion of the three-year probationary period) is a separate tenure-eligibility requirement.” It, thus, concluded that “the statutory structure instructs that the Board’s act of election for provisional tenure is distinct from the Director of Schools’ responsibility to reemploy the teacher for the following school year.”

Second, the majority found the conclusion that board had only extended provisional tenure was demonstrated by “the similarity in the positions held by” Barbee and OCBOE. Specifically, both agreed that actions taken at the April 2011 board meeting set in motion a sequence of events whereby tenure could later vest upon reemployment. It pointed out that the sole point of contention was over the period of time provisional tenure would last, with Barbee conceding that he was not vesting with tenure during the April 2011 board meeting and instead arguing that he was clothe with tenure when he physically reported for work the day after the meeting.

The majority stated:

Implicit in Barbee’s concession is the recognition that the Board of Education only provisionally granted him tenure, conditioned on his later reemployment. Therefore, the parties only truly disagree on the length of Barbee’s provisional tenure, in other words, on what event constituted reemployment within the meaning of the Act. 

The majority found Barbee’s interpretation of what constitutes “reemployment” untenable on two counts. One, the plain meaning of the TTTA belied Barbee’s assertion that his showing up for work the next day “satisfied the tenure-eligibility requirement of reemployment.” It said, “This statutory language clearly contemplates some sort of ‘affirmative action’ by the Board of Education.”  It also determined that “the plain meaning of ‘reemployment’ itself does not in any way comport with Barbee’s strained explanation of his two periods of employment.” It noted that Barbee provided nothing in the record detailing the terms of his new employment contract. In addition, the majority found “the plain language of the statute indicates that reemployment need occur ‘after the probationary period.’”

The majority concluded Barbee was not reemployed within the meaning of the TTTA because he “did not receive a new contract for the following school year or report to work as a teacher in the 2011-12 school year.” It cited a number of Tennessee state court decisions in support of its conclusion regarding the TTTA’s reemployment requirement. According to the majority, “[O]n nearly every occasion when a Tennessee state court has had occasion to discuss the Act’s reemployment requirement, it has either explicitly or implicitly indicated that reemployment refers to the school year that follows the three-year probationary period.” In particular, it quoted from the Tennessee Supreme Court’s decision in Coleman v. Acuff, 569 S.W.2d 459 (Tenn. 1978), which held:

[M]ere completion of the final school year of a teacher’s probationary period could not satisfy the tenure-eligibility requirement of reemployment, stating that “a qualified teacher who has finished the statutory probationary requirements does not obtain tenure status until and unless he or she is reemployed by the Board of Education for further service after expiration of the contract during which the probationary period was completed.”

The majority, therefore, held that the plain language of the TTTA and relevant caselaw supported acceptance of UCBOE’s argument that Barbee was not reemployed and, thus, not tenured.

The dissent found that the majority’s conclusion that Barbee satisfied step one of the tenure requirements, but failed step a feat of illogic. It said, “Given this record and the statutory scheme, though, it is quite odd to say that Barbee cleared Step One but failed Step Three when Step One requires a teacher to be eligible for tenure before the director of schools recommends him to the board.” It also took issue with the majority’s conclusion that board could extend provisional tenure to Barbee because the decision to reemploy him rested with the director of schools.

The dissent pointed out that the concept of provisional tenure appears nowhere in the TTTA. It also contended that the “notion of provisional tenure subject to the director’s discretion conflicts with the plain language of the Act and Tennessee case law.” It argued: “To allow the board to approve Barbee for tenure and then have Director Houston override that decision by nonrenewing Barbee’s contract makes the limits on the director’s powers meaningless, and it conflicts with the basic balance of powers between the board and the director embedded in the [TTTA].”

Barbee v. Union City Bd. of Educ., No. 13-5188 (6th Cir. Mar. 17, 2014)

[Editor’s Note: In July 2011, a new teacher tenure law went into effect in Tennessee.  The Tennessee School Boards Association has provided an FAQ sheet in order to explain the provisions of the new law and how it differs from the previous teacher tenure law.]





New York federal district court rules teacher has a valid First Amendment retaliation claim based on his union activities

Pekowsky v. Yonkers Bd. of Educ., No. 12-4090 (S.D.N.Y. May 29, 2014)

Abstract: A federal district court in the state of New York denied 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 that survived the defendants’ summary judgment motions. It rejected the defendants’ contention that the teacher’s advocacy on behalf of fellow union members was not activity protected by the First Amendment.

The court, likewise, found that the teacher’s involuntary transfer and letter of reprimand constituted an adverse employment action. It also concluded that the facts as pleaded showed a causal connection between the protected activity and the adverse employment action. In addition, it determined, based on the facts, that a reasonable jury could find the teacher would not have been transferred and given the letter but for his union activity. Finally, the court concluded that the principal was not entitled to qualified immunity from the suit because it was clearly established law at the time of the school district’s action that “governmental entities may not inflict an adverse employment decision upon an employee in retaliation for the employee’s exercise of his First Amendment rights.”

Facts/Issues: Marc Pekowsky, a music teacher at Yonkers Middle High School (YMHS) was also the building representative for the Yonkers Federation of Teachers (YFT). As union rep, Pekowsky “butted heads” with YMHS Principal Jane Wermuth on several occasions, in particular on the issue of compensation to teachers for supervising extracurricular activities. Wermuth expressed her distaste for working with Pekowsky and often tried to work around him by suggesting to teachers that utilize the alternate union rep for work related issues. Three incidents that occurred on the same day in January 2012 that led to Pekowsky receiving a letter of reprimand from Wermuth and being involuntarily transferred from YMHS.

On the day in question, Wermuth scheduled meetings with two teachers to discuss concerns regarding teaching methods and excessive absences. She informed the alternate rep of the meeting, who in turn informed Pekowsky. Pekowsky asked Wermuth to arrange coverage of his fifth-period class so that he could attend the meeting and represent the teachers. Wermuth told him, if he “c[ould]n’t find coverage, [Pekowsky] shouldn’t be there.” Pekowsky arranged for a fellow music teacher to cover his class and attended the meetings. Wermuth was upset that Pekowsky had “excused himself from his own class . . . without administrative approval” and “made a mental note to revisit the issue” later.

Later that day, Pekowsky observed two students in the hallway and asked what they were doing. One student, who had a history of assaulting school staff, swore at Pekowsky and ran away. When he arrived at the main office to report the incident, the student was there. Pekowsky told the student to sit down and then stood in the doorway to prevent E.C. from running off. When the student. attempted to push past him, Pekowsky blocked him with his chest, “chest bumping and  nudging” him. The student then threatened Pekowsky, with physical violence..” Pekowsky raised his voice to tell others in the main office that such threats could not be tolerated. A secretary called Wermuth from her office; Wermuth then spoke with E.C. and Pekowsky left the main office.  After Pekowsky left the office he encountered two students and a student aide in the hallway, He angrily asked whether the students should be in class.

Wermuth sent an email to her superior Chief Academic Officer Louis Constantino complaining about Pekowsky behavior. Constantino understood the email as a request to pull Pekowsky from YMHS while an investigation was conducted. Constantino forwarded Wermuth’s e-mail to the district’s investigator, Pasquale Piccirella (“Piccirella”), and asked him to “give this priority #1 Monday morning.” Wermuth spoke with Constantino two days later about the incidents, at which time he sent an e-mail to Vincent McPartlan, who reported to Constantino, with copies to the superintendent, Wermuth, and Piccirella. Constantino, noting he had just spoken with Wermuth, reported that “Mark [Pekowsky] lost control of himself and caused a major scene in the main office with a student and again in [a teacher’s] classroom with other students.” Pekowsky was removed from YMHS pending the outcome of Piccirella’s investigation.

When the investigation was completed, Constantino recommended to the superintendent that Pekowsky be removed from YMHS; the superintendent agreed.  Pekowsky was told he was being transferred out of YMHS permanently and would be splitting his time between two other middle schools. Because of that transfer, Pekowsky could no longer serve as YMHS’s building representative for the teachers’ union. At YMHS, Pekowsky received stipends of $3,000 to $5,000 for participation in certain after-school activities; no such opportunities existed at the two schools to which Pekowsky was transferred. Constantino also gave Pekowsky a letter from Wermuth admonishing Pekowsky and warning him that similar behavior in the future might result in his termination.  Pekowsky subsequently filed suit the defendants claiming retaliation. The defendants’ both filed motions for summary judgment.

Ruling/Rationale: The district court denied both the defendants’ motions for summary judgment. It stated that in order for Pekowsky’s First Amendment retaliation claim to succeed, he must show that he: “(1) engaged in protected First Amendment activity, (2) suffered an adverse employment action, and that (3) the protected activity was “at least a substantial or motivating factor in the adverse employment action.” However, it pointed out that the defendants could avoid liability if they established that they would have taken the “same adverse employment action even in the absence of the protected conduct.”

The defendants both argued: (1) Pekowsky’s union activity was not protected First Amendment activity; (2) neither his transfer or the letter amounted to adverse employment action; (3) there is not causal relationship between Pekowsky’s union activity and any employment action taken; and (4) they would have taken the same actions regardless of Pekowshy’s activities. In addition, Wermuth argued she was entitled to qualified immunity from the suit.

Addressing the question of whether Pekowsky’s union activity was protected speech, the court sought to determine if he spoke “as a citizen on a matter of public concern rather than as an employee on matters of personal interest.”  It pointed out that under the holding in Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees speak as employees rather than citizens when they “make statements pursuant to their official duties.” It stated that a “matter of public concern” is one that “relates to any matter of political, social, or other concern to the community.”The court found Pekowsky’s advocacy on behalf of the teachers’ union, and on behalf of other teachers in his capacity as representative of the union, was protected speech.

The district court, taking into account the inherent institutional conflict of interest in the employer/employee relationship, found that Pekowsky was acting as a private citizen, not in furtherance of his official duties as teacher, when speaking as the teachers’ union representative. It pointed out the evidence showed “he was championing teachers’ due process rights, insisting on union representation for teachers, and opposing Wermuth’s compensation proposal regarding extracurricular supervision.”

The court concluded: Union representation of teachers is a matter of importance to the functioning of our public education system. It is a feature of contemporary public debates. Consequently, Pekowsky’s speech was on a matter of public concern and is protected.

The district court rejected YBOE’s assertion that Pekowsky’s union activity was not protected because it was undertaken to redress “personal workplace grievances.” It responded stating: “Pekowsky’s advocacy on behalf of fellow teachers was not aimed at redressing his own grievances, but was undertaken as a representative of the teachers’ union.” It, likewise, rejected YBOE’s insistence that Pekowsky’s activity was not a matter of public concern because his difficulties with Wermuth were the result of personal friction, not union activities. The court, instead, found that YBOE’s argument went to question of causation, not whether his union advocacy was a matter of public concern.

Turning to the issue of adverse employment action, the district court emphasized that Pekowsky must show that action that action taken by YBOE would “deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” In regard to his transfer, which required him to split time between two schools and involved loss of compensation for supervising extracurricular activities, it concluded that a “reasonable jury could find that Pekowsky’s transfer constituted an adverse employment action.” The court found the same was true for the letter of reprimand. It said, “Such a letter may well “lead [an] employee to believe (correctly or not) that his job is in jeopardy,” and accordingly might dissuade a similarly situated teacher from union advocacy. The court found the fact that Pekowsky successfully filed a grievance to change his transfer to a single school was irrelevant to the analysis.

The court next took on issue of causation. It found “a reasonable jury could find that Pekowsky’s protected union activity was a motivating factor in the decision to transfer Pekowsky and to place the Wermuth Letter in his file.” The court also said, “There is evidence, including purported statements from Wermuth herself, that Wermuth’s hostility toward Pekowsky was a reaction to his advocacy on behalf of the union.” It rejected YBOE’s claim Pekowsky was transferred to safeguard students’ safety, pointing out that YBOE failed to offer any “persuasive reason why a safety concern arising from an incident with a sixth- or seventh-grade student would be properly addressed by transferring Pekowsky to work in two other schools with sixth- and seventh-graders.”

The district court then analyzed YBOE’s affirmative defense, based on the holding in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), that it would have taken the same employment action in the absence of the protected activity. Based on the record, it concluded that “a reasonable jury could find that Pekowsky would not have been transferred, and the Wermuth Letter would not have been written, had Wermuth not borne animus against Pekowsky because of his union activities.”

Lastly, the court addressed Wermuth’s argument that he was entitled to qualified immunity from Pekowsky’s retaliation suit. It found that that the question of whether the union activity like Pekowsky’s here is protected by the First Amendment was not a close call. It stated: “A reasonable official would have known that it is illegal to retaliate against a union representative for zealously advocating on behalf of the union by involuntarily transferring that representative or by drafting a letter of reprimand containing baseless charges concerning corporal punishment and placing that letter in the representative’s personnel file.”

Pekowsky v. Yonkers Bd. of Educ., No. 12-4090 (S.D.N.Y. May 29, 2014)

[Editor’s Note: In June 2014, Legal Clips summarized a story from NPR reporting that the U.S. Supreme Court ruled that a public employee’s sworn testimony under subpoena regarding corruption is protected First Amendment speech. The Court concluded that his firing was in retaliation for that testimony. Lane v. Franks, Docket No. 13-483,  involved  the firing of  Edward Lane from his job leading the school’s program for at-risk youth by Central Alabama Community College President Steve Franks. Lane discovered a state legislator was on the program’s payroll despite doing no work for the group. Franks fired him after Lane testified in an ensuing FBI case against the elected official. The Justices, in a unanimous decision, 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.] 






Missouri district target of disability discrimination suit by deaf student

Rachel McMurtrey. a student at St. Charles West High School, has filed suit against  St. Charles School District (SCSD) claiming that it discriminated against based on her deafness, says the St. Louis Post-Dispatch. The suit, which is seeking $500,000, claims McMurtey has been the victim of seven years of isolation, a lack of education and emotional distress.

McMurtey, who has Cochlear ear implants, claims to have begun experiencing electrical shocks in fifth grade while attending class in one of the district’s older school buildings. She says that when she complained, SCSD’s director of special education accused her making the whole thing up. 

According to McMurtey’s, when her mother request she be transferred to another building; SCSD, instead, developed a home-bound program for her. However, because SCSD had no qualified teachers her mother had to teach her. McMurtey  contends that her mother’s request for a transfer to another district with better resources for hearing impaired students was denied.

McMurtey’s suit also contends that even though her difficulties with the implant stopped when she entered high school, the school district’s discrimination conduct continued. She claims SCSD failed to follow her individualized education plan (IEP). Specifically, the school district failed to provide CART, a device that transcribes spoken words into text,  for all of her classes.

Tom Kennedy, a longtime special education and school law attorney, said that a similar lawsuit filed by a hearing-impaired Creighton medical school student who was denied CART ended last month in a $449,000 judgment for attorney’s fees but nothing to the student beyond use of CART because the court held the discrimination was not intentional. Kennedy said his experience has been that school districts generally take a long time to catch up with new technologies, such as CART, that can really make a difference in a student’s learning.

Celynda Brasher, SCSD’s attorney, insists the school district  consistently meets and routinely exceeds the requirements of the law with respect to students with disabilities, and it did so in this case.

Source: St. Louis Post-Dispatch, 6/24/14, By Susan Weich

[Editor’s Note: In a August 2013 decision involving hearing disabled students who sought through the IEP process to have the school provide a Communication Access Realtime Translation (“CART”) in the classroom, Legal Clips summarized a U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel in K.M. v. Tustin Unified Sch. Dist. opinion holding that compliance with the Individuals with Disabilities Education Act (IDEA) does not satisfy all claims under Section 504 of the Rehabilitation Act or the under the Americans with Disability Act (ADA).  As a result, a school district’s provision of an IEP valid under the IDEA does not automatically preclude liability under Section 504 or the ADA. The panel also determined that there are material differences in the obligations imposed by the IDEA and the ADA to provide services to hearing impaired students.

The National School Boards Association and the California School Boards Association  filed an amicus brief  in support of Tustin Unified School District petition for certiorari asking the U.S. Supreme Court to reviw the Ninth Circuit panel’s decision.  Unfortunately, the Supreme Court denied review on March 3, 2014.]

Advocacy group plans to bring suit challenging New York state’s teacher tenure laws

 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 the state constitution, reports the Poughkeepsie Journal. 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.

PEJ finds encouragement in the fact that a California court struck down similar state laws in Vergara v. State of California. The suit is set to be filed in July 2014. “The idea of basing district-wide layoffs solely on seniority in this day and age doesn’t make sense to most people,” Brown said. “It just doesn’t. It’s why an ineffective teacher can keep his or her job in a layoff situation when a less-senior teacher with a highly effective rating is laid off.”

Under New York law, teachers are eligible for tenure after serving a three-year probationary period. Upon completion of the three-year period, the teacher’s local school board determines whether to grant the teacher tenure. Once tenure is granted, a teacher can’t be fired without a disciplinary hearing, known as a 3020a hearing , or a settlement.

Carl Korn, a spokesman for the New York State United Teachers Association (NYSUT), said the right to a disciplinary hearing is similar to the rights granted police officers or firefighters. “Tenure laws protect students and good teaching by ensuring that educators aren’t fired for speaking out on behalf of their students or because they engage their students in controversial topics,” Korn said. “Does New York really want its teachers to have to remain silent on controversial issues because their employment would depend on the whim of an administrator or school board?”

Referring to the state’s teacher tenure laws, Gov. Cuomo pointed to the state’s teacher-evaluation system, which aims to reward high-performing teachers and identify others in need of added support or even dismissal. “That evaluation would in many ways affect what you are trying to get at by tenure. In other words, with that evaluation system, the teachers who get promoted, the teachers who stay are the teachers who are high performing.”

Source: Poughkeepsie Journal, 6/24/14, By Jon Campbell

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

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