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Sua Sponte: ED/DOJ issue joint guidance regarding states’ and school districts’ obligations under federal law regarding English language learner students

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) and the Department of Justice (DOJ) have issued guidance in the form of a “Dear Colleague Letter” (DCL) regarding the obligations that states, school districts and schools have under federal law to “ensure that English language learner (ELL) students have equal access to a high-quality education and the opportunity to achieve their full academic potential.” 

According to the accompanying press release, the guidance explains schools’ obligations to:

  • identify English learner students in a timely, valid and reliable manner;
  • offer all English learner students an educationally sound language assistance program;
  • provide qualified staff and sufficient resources for instructing English learner students;
  • ensure English learner students have equitable access to school programs and activities;
  • avoid unnecessary segregation of English learner students from other students;
  • monitor students’ progress in learning English and doing grade-level classwork;
  • remedy any academic deficits English learner students incurred while in a language assistance program;
  • move students out of language assistance programs when they are proficient in English and monitor those students to ensure they were not prematurely removed;
  • evaluate the effectiveness of English learner programs; and
  • provide limited English proficient parents with information about school programs, services, and activities in a language they understand.


California district’s lawsuit claims local municipality’s breach of contract in failing to provide police officer resulted in school shooting

According to Courthouse News Service, Taft Union High School District (TUHSD) is suing the City of Taft claiming that the city’s breach of contract led to the shotgun wounding of two people at Taft Union High School (TUHS). The suit, filed in Kern County Superior Court, alleges that the city failed to send a police officer to TUHS during school hours to prevent truancy, among other things, as agreed upon in the contract executed by the parties.

TUHSD charges that the city failed to send an officer on the day that truant student, Bryan Oliver, went onto campus and shot fellow student Bowe Cleveland. TUHSD claims that the shooting would not have happened had the city made sure a police officer was on campus that morning, in accordance with its contract. “Under the contract, a police officer was to be assigned for at least 40 hours per week to Taft Union High School, and one was assigned to be there at the time of the shooting. This gave rise to a duty to have a police officer at the high school,” the legal complaint states.

Cleveland sued the school district in April 2013, claiming that it knew Oliver was dangerous because he had made a hit list the previous year with nearly 30 names on it, including Cleveland’s, and because several students had previously reported being threatened by Oliver. TUHSD contends that the shooting would not have happened had the city made sure a police officer was on campus that morning, in accordance with its contract.

Though the contract contained a “mutual indemnity clause,” the city refuses to indemnify the school district, forcing it to incur the costs of hiring an attorney and defending itself in court, the complaint alleges. TUHSD is seeking damages for breach of contract, contractual indemnity, equitable indemnity and contribution. It also wants a declaration that the city must indemnify the school district in Cleveland’s lawsuit and contribute to the costs of defense.

Source: Courthouse News Service, 1/5/15, By Rebekah Kearn

[Editor’s Note: In July 2014, Legal Clips summarized a decision by an Indiana Court of Appeals three-judge panel in Metropolitan Sch. Dist. of  Martinsville v. Jackson holding that a school district was not entitled to immunity from a negligence suit for an on-campus student-on-student shooting.] 

NSBA Council of School Attorneys Webinar January 14, 2015 – Students with Allergies and Infectious Diseases – 504 Plans, Individual Health Care Plans, Emergency Action Plans, and Federal Guidance

Allergies are becoming more prevalent among children, leaving school districts responsible for determining how best to address issues involving students with allergies. This webinar provides information all school attorneys should know about accommodating students with allergies – including how to determine whether a student needs a Section 504 Plan, an Individual Health Care Plan, an Emergency Action Plan, or some combination thereof.  Register now for this webinar.

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Sonja Trainor, Director, Council of School Attorneys
  • Presenter: Jennifer Deutch and Lori Martin, Partners, Hodges, Loizzi, Eisenhammer, Rodick, & Kohn LLP, Arlington Heights, IL


Florida court tosses teachers union’s suit challenging law expanding state’s voucher program

NorthEscambia.com reports that Leon County Chief Circuit Judge Charles Francis dismissed “with prejudice,” a lawsuit filed by the Florida Education Association (FEA) seeking to reverse a 2014 law that packed together an expansion of eligibility for the voucher program with several other education measures. In September 2014, the judge ruled that the named plaintiff lacked legal standing to bring suit, but gave FEA the opportunity to amend the suit’s language to show that the plaintiff had standing.

However, Judge Francis concluded that the amended complaint also failed to pass legal muster. “In order to sustain standing, the plaintiffs are required to allege sufficient facts to support a finding of special injury,” Francis stated. “As currently pled, the Amended Complaint for Declaratory Judgment also fails to allege a legally sufficient basis to sustain a finding of special injury and the court is of the opinion that further amendments to the complaint will not result in a legally sufficient complaint.”

The judge rejected  the claims by the named plaintiff, and two parents who joined the new lawsuit, that the expansion of the Tax Credit Scholarship Program hurt them because it could lead to reduced funding for their schools. The program provides tax credits to companies that donate money to nonprofit entities that pay for children to go to private schools.

Instead, Francis sided with the state, which argued that to fall under the constitutional provision, a lawsuit had to challenge a bill based on a constitutional limit on how the Legislature spends money. He said the plaintiff couldn’t sue just because the law he was challenging had an impact on the budget.

This latest ruling does not affect a separate suit challenging the constitutionality of the voucher program.

Source: NorthEscambia.com, 12/31/14, By Staff

[Editor’s Note: “With prejudice” is a legal term of art that means that the suit is dismissed and the plaintiff is further barred from re-filing or amending the suit. Judge Francis filed a brief two page order dismissing the claim. 

In September 2014, Legal Clips summarized an article in the Miami Herald reporting on Judge Francis’ dismissal of FEA’s suit, challenging recently enacted legislation expanding the state voucher program and creating new scholarships for children with disabilities. The suit claimed that the law violates a state constitutional requirement that each law be limited to a single subject. Judge Francis held that the teacher named as the plaintiff did not have legal standing to bring the lawsuit. The judge found that the teacher would have had to have demonstrated that he had been harmed by the voucher expansion law.]


ACLU files federal complaint against Virginia school district on behalf of transgender student because the district has limited bathroom facilities available to the student

According to the Daily Press, the American Civil Liberties Union of Virginia (ACLU-VA) has filed a complaint against Gloucester County Public Schools (GCPS) with the U.S. Departments of Education (ED) and Justice (DOJ) on behalf of Gavin Grimm, a female to male transgender student at Gloucester High School. The complaint alleges that GCPS is discriminating against Grimm on the basis of sex because it has adopted a policy limiting the facilities available to transgender students.

The policy states that transgender students can only use single-stall bathrooms or facilities assigned to their biological gender. At the beginning of the 2014-15 school year, Grimm was allowed to use a single-stall restroom at the nurse’s station and some of the staff restrooms. He received permission to use the boys’ restrooms in October, after telling the principal that the earlier arrangement made him feel alienated and isolated.

The ACLU-VA claims that there were no complaints about Grimm’s use of the boys’ restrooms  prior to the Gloucester County School Board’s adoption of the new policy. According to the complaint, Grimm has been isolated and outcast by the new policy. “The real potential for such harassment is reflected in some of the public comments at the School Board meeting labeling Gavin as a ‘girl’ and a ‘freak,'” the complaint stated.

ACLU-VA legal director Rebecca Greenberg said courts have repeatedly ruled that discriminating against people on the basis of gender identity is sex discrimination. “Consigning transgender students to segregated bathrooms prevents them from participating in school activities on an equal basis and causes exclusion and isolation,” she added.

The complaint alleges that transgender bathroom policies violate Title IX, which states that students can’t be excluded from school programs or activities on the basis of sex. The ACLU-VA acknowledges that schools are allowed to protect students’ privacy, but insists they cannot do so by singling out transgender students for different treatment.

The board’s new policy won praise from a group founded by leaders of the Campus Crusade for Christ and Focus on the Family.

Source: Daily Press, 12/19/14, By Dave Ress

[Editor’s Note: The ACLU-VA’s administrative complaint with ED/DOJ asserts that GCPS’ “’biological gender’ policy on its face and as applied to [Grimm] discriminates against [him] on the basis of his sex in violation of Title IX.”

The complaint also cites the ED/DOJ resolution agreement with a California district over discrimination against a transgender student, which was reported in a previous issue of Legal Clips. In August 2013, Legal Clips published a Sua Sponte item reporting that Arcadia Unified School District (AUSD) had entered into a resolution agreement with the U.S. Department of Education, Office for Civil Rights and the U.S. Department of Justice, Civil Rights Division which ended the federal agencies’ investigation into allegations of discrimination against a transgender student. Under the resolution agreement, AUSD agreed to continue accommodations it began providing the student over a year before the agreement was executed.

In addition, the ACLU-VA cited a Colorado administrative decision upholding a transgender student’s right to use the girls’ restroom. In June 2013, Legal Clips summarized an article in The New York Times reporting that Colorado’s civil rights division had found that a school district discriminated against a transgender elementary student when it refused to let her use the girl’s bathroom. The division concluded that the Fountain-Fort Carson School District needlessly created a situation in which the student, Coy Mathis, would have been subjected to harassment when it barred her from the girls’ bathroom even though she clearly identified as female.] 


Sua Sponte: Legal Clips on hiatus December 24, 2014 through January 4, 2015

Legal Clips will be on hiatus from Wednesday, December 24, 2014, through Sunday, January 4, 2015. We will return on Monday, January 5, 2015, with fresh news and case summaries to brighten the new year. In the meantime, we wish all of our readers happy holidays and a litigation free new year.




Third Circuit rules that school district officials were not entitled to qualified immunity from former employee’s First Amendment retaliation suit based on his whistle blowing activities

Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)

Abstract: A U.S. Court of Appeals for the Third Circuit three-judge panel has ruled that school district officials were not entitled to qualified immunity from a First Amendment retaliation suit brought by a former school district employee. Affirming the federal court’s decision, it held that the  former employee had raised a valid claim in alleging that his free speech rights had been violated and that the asserted constitutional right was clearly established at the time the alleged violation had occurred.

The panel concluded that the former employee had not spoken “pursuant to official duties” when he reported the superintendent’s alleged misconduct to the newspaper. It rejected the defendants’ attempt to replace the Garcetti “pursuant to official duties” test with one that precludes First Amendment protection for speech that “owes its existence to a public employee’s professional responsibilities.” It also found that the balancing test laid out Pickering v. Board of Education, 391 U.S. 563 (1968), favored the employee’s interests over the employer’s. Finally, the panel determined that the right asserted by the former employee was clearly established.

Facts/Issues: Francis X. Dougherty was employed as the Deputy Chief Business Officer for Operations and the Acting Chief of Operations for the Office of the Deputy Superintendent within the School District of Philadelphia (PSD).  He reported to the Deputy Superintendent who reported to the Superintendent. After PSD Superintendent Arlene Ackerman ordered the installation of cameras at all schools designated “persistently dangerous,” Dougherty was tasked with leading the procurement process, which was to be completed within 30 to 60 days. Because of the short time frame, the usual competitive bidding process could not be utilized.

As a result of the short timeline and pursuant to state guidelines and school district policy, Dougherty’s team was required to select a pre-qualified contractor, i.e., a contractor with an existing contract with the School District or another state agency that was obtained through a competitive bid. The team identified Security and Data Technologies, Inc. (“SDT”) as one such contractor. A proposal was then forwarded to Ackerman for approval.

Ackerman allegedly rejected the SDT proposal for lack of minority participation and directed that IBS Communications, Inc. (“IBS”), a minority owned firm, be awarded the prime contract instead. IBS was not a pre-qualified contractor and was therefore ineligible for no-bid contracts. However, Dr. Ackerman submitted IBS’s implementation plan to the School Reform Commission for review. The SRC ratified the plan at its voting meeting. Ackerman subsequently transferred responsibility for managing the camera project to PSD’s procurement director, whose department did not ordinarily handle this type of project.

In approximately November of 2010, IBS lodged a complaint. Dougherty was not included in a camera project personnel meeting called by Deputy Superintendent Dr. Leroy Nunery to discuss the complaint. Nunery criticized the staff and blamed Dougherty for obstructing IBS’s work. An upset Dougherty sent Nunery an email rejecting his allegations and requesting a meeting  to discuss the issue. Following Nunney’s accusations, Dougherty met with reporters from The Philadelphia Inquirer concerning Ackerman’s alleged wrongdoing in connection with the IBS contract.

The Philadelphia Inquirer published an article headlined, “Ackerman Steered Work, Sources Say.” It was the first of several articles accusing Ackerman of steering the contract to IBS in violation of state guidelines and School District policies and procedures. Dougherty also submitted a report to the FBI Tips and Public Leads website, contacted several state representatives, and submitted a hotline report to the Office of Inspector General for the U.S. Department of Education.

The day after The Philadelphia Inquirer article was published, Dougherty was called to a meeting with Ackerman and Nunery. Dr. Ackerman vowed to get to the bottom of who leaked the information and stated she could fire Dougherty over this information getting to the press. Ackerman decided a full-blown investigation was needed, and placed Dougherty and five others on administrative leave pending the outcome of the investigation. At that point, Dougherty informed PSD’s human resources executive that he was the source of the leak and had gone to federal law enforcement agencies.

Several days later, Ackerman hired Michael Schwartz of Pepper Hamilton LLP to conduct the investigation. There is a significant factual dispute as to the nature of the investigation. Dougherty contends that Ackerman specifically instructed Schwartz to find the source of the leak. Schwartz maintains, however, that the scope of the investigation was limited to discovering “[a]ll of the facts surrounding the decision to award these contracts . . . [and] whether anyone at the School District had violated School District policies or Pennsylvania or federal [laws].” The relevant confidentiality provision of PSD’s Code of Ethics provides: “A School District employee shall not disclose confidential information concerning property, personnel matters, or affairs of the [School] District or its employees, without proper authorization . . . . Nothing in this provision shall be interpreted as prohibiting the practice of ‘whistle-blowing.’”

In March of 2011, Pepper Hamilton issued its report, which concluded that there was no evidence of unlawful motive in the award of the IBS contract. Pepper Hamilton did find, however, that Dougherty violated the Code of Ethics by emailing information about the SDT proposal to an unknown email address, which the district determined was a personal email address belonging to Dougherty. The investigation also revealed that Dougherty emailed large volumes of confidential information related to the camera project to his personal email address, which was not a violation of the Code of Ethics, per se.

The report also stated that Dougherty had breached the confidentiality section of the district’s code of ethics, by forwarding e-mails to his personal e-mail address and to the unknown e-mail address, and that his refusal to cooperate with the investigation after he had been suspended and retained a lawyer prevented PSD from reaching any other conclusion. Dougherty was terminated shortly after the report was issued. Dougherty filed suit in federal district court against PSD, Ackerman, Nunery, and other district officials. The suit alleged that  he was terminated in retaliation for his disclosure of Dr. Ackerman’s alleged misconduct to The Philadelphia Inquirer and law enforcement agencies, in violation of the First Amendment under 42 U.S.C. § 1983 and Pennsylvania’s Whistleblower Law.

The school district officials filed a joint motion for summary judgment and asserted the defense of qualified immunity as to Dougherty’s First Amendment retaliation claim. The district court explained that Dougherty’s allegations were sufficient to establish a First Amendment retaliation claim. First, it found no evidence “suggesting [Dougherty’s speech] fell within the scope of his duties to recognize the alleged misconduct as such and report it,” and, therefore, concluded that Dougherty spoke as a citizen under Garcetti v. Ceballos, 547 U.S. 410 (2006). Second, it found no evidence “compel[ling] a conclusion that Dougherty and [defendants] had such close working relationships that his reports to the press would undermine their ability to work together,” tipping the balancing test established in Pickering v. Board of Education, 391 U.S. 563 (1968).

The court found that defendants’ motivation for firing Dougherty was a disputed issue of material fact, and concluded that Dougherty made a sufficient showing of improper motivation to put the issue before a jury. Turning to whether the right was clearly established, the district court found that a reasonable governmental official would have been on notice that retaliating against Dougherty’s speech was unlawful. Thus, it concluded that defendants were not entitled to qualified immunity.

Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision denying the school district defendants qualified immunity from Dougherty’s First Amendment retaliation claim. It stated that in order for Dougherty to defeat the claim of qualified immunity, pursuant to the U.S. Supreme Court’s holding in Saucier v. Katz, 533 U.S. 194, 201 (2001), he must show: (1) the defendants’ conduct “violated a constitutional right;” and (2) that right was “clearly established” at the time of the challenged conduct. Because the claim asserted by Dougherty was a First Amendment retaliation one, it looked to the three-part test that requires a public employee to show:  “(1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.”

However, the panel focused solely on part one of the test, as the second and third elements presented questions of fact and were not being contested in the appeal. It stated that the central question was whether the facts as determined by the district court established that Dougherty’s speech was entitled to First Amendment protection. It indicated that under Pickering v. Board of Education, 391 U.S. 563 (1968), “[s]o long as [public] employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

The panel, therefore, employed a three-part analysis to determine if Dougherty’s speech was protected, beginning with the test established in  Garcetti v. Ceballos, 547 U.S. 410 (2006), and reiterated by the Supreme Court in Lane v. Franks, 134 S. Ct. 2369 (2014). As to the second part, which requires that the speech involve a matter of public concern, it found that the question was undisputed. Finally, the third part requires proof that the government lacks an “adequate justification” for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.

Addressing the Garcetti inquiry of whether Dougherty spoke pursuant to his official duties, the panel explained that the Supreme Court “declined to advance a framework for defining when an employee speaks pursuant to his official duties, explaining that ‘[t]he proper inquiry is a practical one.’” It stressed that whether an employee’s speech is made within the context of job duties “is a mixed question of fact and law.” Applying Garcetti  test to the facts, the panel agreed with the lower court that Dougherty did not speak “pursuant to his official duties” when he disclosed details of Ackerman’s alleged misconduct in awarding the prime contract to IBS.” It concluded that “nothing about Dougherty’s position compelled or called for him to provide or report this information” to any source either within the school district or outside of the district.

As a result, the panel found: “Dougherty’s report to The Philadelphia Inquirer, therefore, was made as a citizen for First Amendment purposes and should not be foreclosed from constitutional protection.” It rejected the defendants attempt to replace Garcetti’s “pursuant to official duties test with one that precludes First Amendment protection for speech that “owes its existence to a public employee’s professional responsibilities.” It emphasized that “whether an employee’s speech “concern[s] the subject matter of [his] employment” is ‘nondispositive’ under Garcetti.” The panel pointed out that the Supreme Court recently reiterated in Lane that “speech by public employees ‘holds special value precisely because those employees gain knowledge of matters of public concern through their employment.’” It concluded that “Lane reinforces Garcetti’s holding that a public employee may speak as a citizen even if his speech involves the subject matter of his employment.”

The panel found that if anything “Lane may broaden Garcetti’s holding by including ‘ordinary’ as a modifier to the scope of an employee’s job duties.” However, it left the question unanswered as it was not before the court in the appeal. It stated: Under Lane, our determination stands that Dougherty’s report to The Philadelphia Inquirer was not made pursuant to his official job duties. Dougherty’s claim is not foreclosed merely because the subject matter of the speech concerns or relates to those duties.”

The panel next took up the Pickering balancing test  under which Dougherty’s speech is protected only if the “test tilts in his favor.” It agreed with the lower court’s assessment that “any disruption to the School District was outweighed by the substantial public interest in exposing government misconduct, tipping the Pickering balancing test in Dougherty’s favor.” Like the district court, it found that any workplace disruption was not the result of Dougherty’s whistle blowing activities, but of PSD officials’ attempt to suppress his speech. The panel concluded that “ … while the parties do not dispute that there was some actual disruption to the School District, we also keep in mind that it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office.”

Turning to the second prong of the qualified immunity analysis, which requires courts to determine whether that right was “clearly established,” the panel concluded “that the illegality of the [defendants’] actions was sufficiently clear in the situation they confronted.” It stated: “Given the citizenlike nature of Dougherty’s disclosure to The Philadelphia Inquirer, the lack of close working relationships with either Dr. Ackerman or Dr. Nunery, and the disputed issue of fact with regard to the cause of the disruption, it is sufficiently clear that Dougherty’s speech was protected under the First Amendment.”

Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)

[Editor’s Note: In February 2013, Legal Clips summarized a decision by a A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in McArdle v. Peoria Sch. Dist. 150 holding that school district officials in Illinois did not retaliate against a former middle school principal for exercising her First Amendment free speech rights by reporting her predecessor’s misuse of district funds. The panel concluded that the former principal had not spoken as a private citizen, but as a public employee, and, therefore, her speech was not constitutionally protected from discipline by her employer.]

Iowa district being investigated by OCR for discriminating against African American students in discipline

The Gazette reports that according to an unnamed source at the U.S. Department of Education’s Office for Civil Rights (OCR), OCR’s investigation into a Cedar Rapids school district’s discipline practices is likely to conclude this spring with an agreement by the district to revise its policies and continued monitoring by the agency. OCR is looking into whether Cedar Rapids Community School District (CRCSD) has discriminated against African American students by disciplining them at a rate disproportionate to their percentage of enrollment.

The unidentified OCR source said that most investigations conclude with an settlement, known as a resolution agreement. “If we do determine that non-compliance exists, then we attempt to negotiate a resolution agreement with the school district to help it come into compliance with the law,” the source said. “In virtually all cases, we’re able to successfully negotiate these agreements.”

Some of the resolutions from recently published agreements include:

• Not admitting to any violation of the law. The Office for Civil Rights usually agrees to stop its investigation.

• Hiring an outside consultant to help it review and revise its discipline policies.

• Reviewing and revising those policies.

• Providing cultural competency and discipline training to staff and students. Many districts use a discipline system called Positive Behavioral Intervention and Supports, which emphasizes rewarding desired behaviors rather than punishing unwanted ones.

• Reaching out to community stakeholders, including parents, to provide information about district discipline policy and ask for their input.

• Reporting back to the OCR on an annual basis, usually for an indefinite period until the office determines that monitoring is no longer required. In some earlier cases — including one in Iowa City involving claims of racial disparities in that district’s special education programs — the office limited its reporting requirement to a fixed period of three years.

While it is possible that OCR could find no violations in CRCSD, Daniel Losen, a civil rights lawyer and the director of the Center for Civil Rights Remedies at UCLA, said that is unlikely. “It’s pretty unlikely that if they do a full-scale investigation that nothing will come of it,” Losen said. However, he said that most complaints the office receives do not turn into this type of investigation.

Cedar Rapids Superintendent David Benson said the district has not heard from the office since investigators from the OCR Chicago office visited CRCSD in September 2014. That indicates that investigators likely have not concluded the initial phase of their investigation, Losen said, in which they review the evidence they collected through interviews, on-site visits and a public meeting while in Cedar Rapids. They may also be collecting additional evidence through further data collection or interviews.

Once OCR personnel have completed this stage of the investigation, Losen said, they will begin writing a first draft of a resolution agreement. That agreement must be approved by an administrator in Washington, D.C., after which investigators will present it to district administrators and attorneys.
The two sides then have a period of 30 days to come to an agreement, according to the case processing manual. If they are successful, the investigation will end and the district will begin implementing the resolution agreement. If not, the investigation will continue. The entire process can take more than six months, Losen said.

If a district is not cooperative with an investigation or if the two sides cannot reach an agreement the OCR can cut off federal funding to the district or refer the case to the Justice Department for litigation, according to the office spokesman and the case processing manual. But that seldom happens, Losen said, because the office’s aim is to help the district improve rather than punish it.

Source: The Gazette, 11/28/14, By Andrew Phillips

[Editor’s Note: In October 2014, Legal Clips summarized an Associated Press article in in the Daily Journal reporting that Tupelo Public School District had reached an agreement with the U.S. Department of Education’s Office of Civil Rights (OCR) over discrimination in the district’s disciplinary process. OCR investigated the school district from 2010-2012 and found that African-American students made up 81% and 78%  of disciplinary referrals for that two year period examined, despite making up not quite half of the total number of enrolled students.

In July 2014, Legal Clips summarized an article in The Advertiser reporting that the U.S. Department of Education’s Office for Civil Rights (OCR) is looking into a complaint regarding discrimination against African-American students by Lafayette Parish School System (LPSS). An OCR spokesman said, “The case focuses on whether the district discriminated against black students on the basis of race with respect to discipline practices.”] 

Federal court dismisses long running special education suit against D.C. Public Schools freeing district of court appointed monitors of special ed programs

The Washington Post reports that U.S. District Court Judge Paul Friedman has dismissed a 18 year old suit against D.C. Public Schools (DCPS), terminating the court’s oversight of how DCPS administers delivery of services to students with disabilities. The court’s decision  allows the schools to administer special-education services without a court-appointed monitor routinely checking in and reviewing files to track performance.

City officials hailed the ruling as a vote of confidence that the city’s education reform efforts are paying off. “This is a huge day for the District and for children with disabilities,” Mayor Vincent C. Gray said. “Our education agencies worked tirelessly to achieve this goal.” Gray indicated that the number of special education students placed in private schools at taxpayer expense had declined by 56%, from 2,204 to 975.

Chancellor Kaya Henderson thanked the “teachers, paraprofessionals, special- education coordinators, psychologists, social workers, related service providers, case managers, administrators, school leaders, compliance team leaders, attorneys and special-education program staff members” for their hard work, which she said proves that the city schools should be allowed to oversee special-education services.

Source: The Washington Post, 12/16/14, By Michael Alison Chandler

[Editor’s Note: In July 2014, Legal Clips summarized a decision by a D.C. federal district court in Smith v. Henderson dismissing a suit claiming that D.C. Public Schools’ (DCPS) school closure plan violates minority parents’ and students’ Fifth Amendment equal protection rights and civil rights under Title VI of the Civil Rights Act because the decision to close schools was made on the basis of race. The court concluded that some of the issues raised by the plaintiffs were policy questions, which are political in nature and not susceptible to legal resolution. Regarding the school closure policy, it found there was no evidence that the policy was applied in a racially discriminatory manner.] 

Fifth Circuit panel rules that Mississippi district that disciplined student for off-campus, online speech violated his free speech rights

Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Dec. 12, 2014)

Abstract: A U.S. Court of Appeals for the Fifth Circuit three-judge panel, in a 2-1 split, has ruled that a school board violated a student’s free speech rights by disciplining him for off-campus speech. The panel determined that the speech in question, i.e., a rap song accusing two male coaches of misconduct with female students, which was posted online on Facebook and YouTube, was not speech that occurred on school property or during a school-sponsored event off-campus. It concluded that the federal district court had incorrectly applied Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because the evidence did not “support the conclusion that a material and substantial disruption at school actually occurred or reasonably could have been forecasted.”

The panel pointed out that the U.S. Supreme Court’s “student-speech” jurisprudence does not address the question of student speech that occurs off-campus and not at a school approved event. Even in the absence of Supreme Court precedence, it found that it was neither necessary nor appropriate for the panel to anticipate such a decision. It also rejected the school board’s attempt to characterize the student’s speech as undeserving of First Amendment protection under Fifth Circuit precedent or because it constituted a true threat.

Facts/Issues: Taylor Bell, a student at Itawamba Agricultural High School (IAHS), filed suit in federal court against the Itawamba County School Board, Superintendent Teresa McNeece and Principal Trae Wiygul, alleging that the defendants disciplined him in violation of his First Amendment free speech rights. Bell was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting with and maintaining inappropriate contact with female students.

The suit contended that Bell’s song “was produced off school property, without using school resources, never played or performed at the school, not performed at a school sponsored event, and never accessed by students on school property.” Bell claims that four days after he posted the song on Facebook, he was taken out of class to meet with the school principal, the superintendent and the school board attorney, all of whom accused him of “making false allegations and threats.”

A school district disciplinary committee found that his song amounted to harassment and intimidation of school teachers and possible threats against teachers. The committee recommended a seven-day suspension and five weeks at Itawamba Alternative School. On appeal, the school board upheld the punishment and affirmed that Taylor Bell “threatened, harassed, and intimidated school employees” with the publication of his song.

The suit made three federal claims:  (1) that Bell was disciplined for engaging in constitutionally protected speech; (2) that the discipline violated the parenting rights of his mother, Dora Bell, as guaranteed by the Fourteenth Amendment Due Process Clause; and (3) that Bell’s speech was entitled to heightened protection as it addressed a matter of public concern. The complaint also alleged violation of Mississippi law. Having determined that there were no factual issues, the court resolved Bell’s claims by summary judgment.

The district court ruled that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

The court rejected the student’s argument that because his speech was regarding a matter of public concern, it was entitled to heightened protection. It found that he had failed to demonstrate as a matter of law that student speech is entitled to such heightened protection in lieu of the Tinker standard. The court also concluded that had it not found for school officials on the First Amendment speech claim, it would have granted them qualified immunity because the student had failed to show that a reasonable official would have believed the student’s song to be clearly protected First Amendment speech.

The court, likewise, dismissed the parent’s Fourteenth Amendment due process claim that the school’s disciplinary measures infringed on her liberty interest to make decisions regarding the care, custody and control of her child. The parent had not shown, ruled the court, that the disciplinary measures taken by school officials were not tied to the school’s compelling interest of maintaining school order.

Ruling/Rationale: The Fifth Circuit panel’s majority reversed the lower court’s grant of summary judgment in favor of the school board on the first amendment claim and rendered judgment in favor of the student, Bell. It remanded the case to the district court, ordering that court to award Bell nominal damages, court costs, appropriate attorneys’ fees, and an injunction ordering the School Board to expunge all references to the incident at issue from Bell’s school records. However, the majority affirmed the lower court’s judgment in all other respects.

The majority addressed in turn the three arguments made by the board to justify its discipline of Bell. It began the analysis with the board’s argument that it was justified in taking disciplinary action against Bell for his off-campus, online speech under Tinker’s substantial distribution standard. First, the panel rejected the district court’s conclusion that U.S. Supreme Court student speech precedent expressly allows school officials to regulate off-campus speech that causes material or substantial disruption at school.

Directly refuting the district court, the majority said, “[c]ontrary to the district court’s conclusions, the Supreme Court’s ‘student-speech’ cases, including Tinker, do not address students’ speech that occurs off campus and not at a school-approved event.”  It found that the language in Tinker, which was relied upon by the district court to permit regulation of off-campus speech, merely indicated that balancing the protection of free speech rights with the regulation of student conduct “extends to all facets of on-campus student speech and not just that occurring within the classroom walls.” In a footnote directed at the dissent, the majority declined the opportunity to rule in advance of the Supreme Court addressing the issue of whether the Internet and all its associated “technological developments” have “vitiated the distinction between on-and-off-campus student speech, thus expanding the authority of school officials to regulate a student’s speech when he or she is at home during non-school hours.”

Even assuming that Tinker’s substantial disruption standard applies to off-campus speech, the majority concluded that it could not provide justification in the present case for the board’s disciplining Bell. It found that the evidence presented on the motion for summary judgment failed to establish that substantial disruption ever occurred or that the evidence “demonstrate[d] any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” It found that the coaches’ testimony that they had altered their teaching styles to “avoid accusations of sexual harassment” did not demonstrate a “material and substantial disruption of school work or discipline that would justify the restriction of student speech under Tinker.”

The majority also indicated that the facts did not support a finding that a disruption could be reasonably forecast. It rejected the board’s attempt to rely on its policy that categorizes certain speech as a “severe or substantial disruption without any reasonable factual predicate that such speech would likely lead to substantial disruption of school work or discipline” in order to prove reasonable forecast.

The majority next addressed the school board’s argument that Bell’s off-campus, online posting of his rap song was not protected First Amendment speech based on the Fifth Circuit’s holding in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007).  Specifically, “Ponce … narrowly extends Morse in holding that the Tinker analysis does not apply to speech brought to campus that ‘gravely and uniquely threatens violence, including massive deaths, to the school population as a whole.’” It rejected the board’s attempt to link Bell’s rap song to Ponce. First, the majority pointed out that “Ponce did not involve student speech occurring entirely off campus; rather, the student in Ponce brought his threatening diary to campus and showed its contents to a classmate.” Next, it stressed, even more importantly, that in Ponce “the student’s notebook graphically detailed the group’s plan to commit a[C]olumbine shooting attack at the student’s school, as well as other area schools,” while in the present case Bell’s song contains violent imagery typical of the hyperbolic rap genre that is aimed at specific persons, rather than bearing the stamp of . . . mass, systematic school-shootings.”

In sum, the majority concluded that Bell’s song fell well short of  the “terroristic threat to the safety and security of the students and the campus that the school officials encountered in Ponce.” As a result, it declined to extend Ponce’s holding by concluding that the stylized artistic violence in Bell’s rap song was not the functional equivalent of “the extremely threatening notebook created and brought to school by the student in [Ponce].”

Finally, the majority addressed the school board’s argument that Bell’s rap song fell within the “true threat” exception to the First Amendment. It concluded that the argument was without merit. It said “…as evidenced by the reactions of the listeners themselves, there was no reasonable or objective ground for the coaches to fear that Bell personally would harm them.” After review of  a number of factors that Supreme Court precedent had identified as instructive in determining what constitutes a “true threat,” the majority concluded that “it is clear that the rap song that Bell recorded in a professional studio and subsequently posted on the Internet in protest of what he perceived as an injustice occurring at his high school did not constitute a ‘true threat.’”

The majority also placed great significance on the fact that Bell’s rap was broadcast publicly over the Internet and not conveyed privately or directly to the coaches. It explained:

The case law shows that it makes a big difference whether the purportedly threatening speech is contained in a private communication-or a face-to-face confrontation, a telephone call, a dead fish wrapped in newspaper-or is made during the course of public discourse. The reason for this distinction is obvious: Private speech is aimed only at its target.

It found that the overall context of the song revealed that a reasonable listener would view Bell as having  employed “purely rhetorical use of violent language” in his lyrics in an effort to “(i) raise awareness of an important issue of public concern, and (ii) attract the attention of listeners and record labels in furtherance of his musical ambitions.”

The majority also indicated out that the “purported ‘threats’ contained in the song are conditional in nature, as demonstrated by both the lyrics themselves and the school officials’ interpretation of them.”  Finally, it found that the reactions of listeners “undermine the notion that a reasonable listener would view the song as a threat.” The majority, therefore, concluded “that the violent language contained in the lyrics was clearly rhetorical in nature, and we therefore reject the argument that Bell’s song constituted a “true threat” of violence.”

In closing, the majority reiterated that it was not deciding whether the Tinker standard can be applied to off-campus, online speech, but instead stated that, “even assuming arguendo the School Board could invoke Tinker in this case, it would not afford the School Board a defense for its violation of Bell’s First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell’s song either substantially disrupted the school’s work or discipline or that the school officials reasonably could have forecasted such a disruption.”

The dissent, unlike the majority, did not view Bell’s musical efforts as artistic or a hyperbolic use of violent  rhetoric to make social comment. Instead, the dissent concluded that the lyrics in the song constituted threats of violence against the coaches not worthy of First Amendment protection. It contended that the board’s decision to discipline Bell should be upheld under the “true threat” analysis. The dissent concluded that the board had satisfied both prongs of the true threat test: (1) whether the speaker “intentionally or knowingly communicated the statement in question to someone” including “a third party”; and (2) “whether a reasonable person would interpret the purported threat as a serious expression of an intent to cause a present or future harm.”

According to the dissent: “After listening to the statements in the rap recording, the school board determined unanimously ‘that [Bell] did threaten, harass, and intimidate school employees’. Therefore, the rap recording was understood, both subjectively by one of the coaches and objectively by the school board, to be a threat.” It argued that the fact that the threat were woven into a rap recording immaterial because “Bell’s words could reasonably be considered to place two members of the school’s faculty in danger.”

Throughout the opinion, the dissent decried the majority’s failure to defer to board’s expertise in matters of student discipline. It stated the question in determining if the board’s actions were justified is  “whether an objectively reasonable person could interpret the speech as a true threat.”

The dissent concluded:

Finally, this court should be even more reluctant to overrule the judgment of school officials in the light of the above-described, widespread gun violence throughout our Nation. Combining Bell’s intentional communication of the rap recording toward students and administrators with the school board’s objective determination that Bell threatened, harassed, and intimidated two teachers, there is no genuine dispute that Bell’s threats satisfy the true-threat test and, therefore, are unprotected speech.

The dissent also contended that Bell’s discipline could be upheld under the Tinker standard. It argued that the “on-campus/off-campus” distinction regarding student speech is no longer relevant because of the Internet and associated technological developments. However, it said, “Bell’s intent for the speech to reach members of the community (admitted by Bell at the disciplinary-committee hearing and recognized by the majority ), evidenced by his posting the recording publicly to Facebook and YouTube, makes Bell’s speech the functional equivalent of on-campus speech.”

The dissent also found support for Tinker’s application to off-campus speech in Porter. It contended that the “majority’s assertions that [the Fifth Circuit] has not previously applied Tinker to off-campus speech is an egregious misrepresentation of [Fifth Circuit] precedent.” The dissent argued that because Bell targeted his recording to students and administrators his speech was inevitably brought on campus by mobile electronic devices, e.g. cell phones, and, therefore, Tinker applies.

The dissent stated: “Because the school district’s written policy embraces the Tinker analysis, this question boils down to whether the school board acted reasonably in determining the rap recording was a substantial disruption because it threatened, harassed, and intimidated two teachers.” It concluded that there was no genuine dispute of material fact and, therefore, the school board acted reasonably.

Again the dissent questioned the majority’s understanding of Tinker, saying, “Under the majority’s understanding of Tinker, a student could say anything so long as he set it to melody or rhyme.” It also criticized the “majority’s attempt to limit the school board’s policy as applying only to activities physically occurring on school grounds” because such an assertion “runs counter to the policy’s express language and purpose.”

The dissent found Bell’s claims that “his rap recording is merely hyperbole and, therefore, protected speech; and, as a corollary, the school board acted “unreasonably” meritless. It argued that whether Bell’s lyrics were “threatening, harassing, or intimidating is immaterial” because “[u]nder Tinker, a school may take action so long as the speech is reasonably forecast to cause a material and substantial disruption.”

In closing, the dissent charged:

The majority’s logic is flawed; although potentially representative of how some would interpret the recording, simply because one segment of the population views speech one way does not make another understanding objectively unreasonable. This red herring by the majority undermines its position—the only issue of consequence is whether the school board acted reasonably in viewing Bell’s speech as threatening, intimidating, or harassing, not which interpretation is “more reasonable.

Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Dec. 12, 2014)

[Editor’s Note: In March 2012, Legal Clips summarized the district court’s opinion in Bell holding that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

In December 2014, Legal Clips summarized the commentary from Scotusblog on oral argument in Elonis v. United States, which addressed whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just ‘venting’ about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.” 

The federal government argued that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone. While Elonis argued that the test should be a subjective one: did he personally intend to threaten anyone?]


















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